Calcutta High Court (Appellete Side)
Kartick Chanda Ghosh vs Arun Kumar Ghosh (Since Deceased) on 17 November, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
S.A. 241 of 2009
Kartick Chanda Ghosh
Vs.
Arun Kumar Ghosh (Since deceased)
Substituted by legal heirs -
Smt. Ruby Ghosh & Ors.
For the Appellant : Mr. Indranath Mukherjee
Mr. Sukanta Mondal
For the Opposite Party : Mr. Joydeep Basu
Heard On : 04-10-2016, 05-09-2016 &
10-08-2016
Judgment On : 17-11-2016
Indrajit Chatterjee, J.:- This second appeal has been preferred by the plaintiff-
respondent as against the order of the learned First Additional District Judge,
Howrah in Title Appeal No. 59 of 2004 in which the learned First Appellate Court was pleased to reverse the judgment and decree dated 31st January, 2004 as passed by the learned Civil Judge (Senior Division), Uluberia, in Title Suit No. 8 of 2000. On Scrutiny of the judgment and decree of the First Appellate Court it appears that actually the said appeal was disposed of not by the First Additional District Judge, Howrah, but it was actually disposed of by the Additional District Judge, 4th Court, Howrah. This defect will be cured after this judgment is pronounced and the judgment and decree of the First Appellate Court is to be corrected. The cause title of the appeal and the relevant registers of this court is also to be rectified.
The fact relevant for the purpose of adjudication of this appeal can be stated in brief, thus, that the suit property originally belonged to Tulsi Charan Ghosh, that is the predecessor in interest of the appellant. Tulsi Charan Ghosh had two wives Sankari Bala and Nihar Bala. Sankari Bala gave birth of two sons that is Arun Kr. Ghosh and another, Dr. Kashinath Ghosh. This Arun Kr. Ghosh being the step-brother is the defendant -respondent. This appellant Kartick is the son of Tulsi and Niharbala, 2nd wife of Tulsi. Tulsi Charan Ghosh executed a registered deed of gift in favour of his second wife Nihar Bala by creating a trust with direction upon her to divide the properties between her two issues that is Kartik Chandra Ghosh (appellant) and Pratima Dhole (the daughter). The said deed was executed and registered on 20th February, 1982 (exhibit 5). In that deed it was recited why Tulsi Charan Ghosh deprived his other legal heirs in respect of the suit property. The plaintiff further claimed that while giving birth to her daughter Nihar Bala became blind. It was also the case of the plaintiff that Pratima Dhole after her marriage gifted her share in respect of the suit holding in favour of Kartik Chandra Ghosh, his full brother, by a registered deed of gift dated 13.09.1999. Niharbala died on or about 1989.
It was further case of the plaintiff that Arun Chandra Ghosh, son of Tulsi through the first wife Sankari requested the appellant Kartik to accommodate him temporarily for some time in the year 1994 as he had to leave his rented accommodation. He further agreed that he will vacate the premises as early as possible on getting any rented accommodation.
The plaintiff claimed that Arun was a monthly tenant of Joydeb Mukherjee of Boulia, Boul Khali, district - Howrah. In the plaint the portion in occupation of Arun has been shown as 'B' schedule property and the plaintiff claimed that Arun is nothing but a licensee and the plaintiff further claimed that the said licensee agreed to vacate possession in favour of the plaintiff but even on demand the defendant refused to vacate possession in his favour.
It was further case of the plaintiff before the learned Trial Court that this appellant/plaintiff sold 8 kathas out of the suit plot to one Monoj Jana and when Monoj Jana was trying to give fencing to demarcate his property then the defendant-respondent came with others and objected to that by saying that Tulsi Charan Ghosh orally settled that property in his favour. It may also be noted that the plaintiff claimed that present respondent/defendant forcibly took electric connection in respect of the 'B' schedule property. The plaintiff filed the suit for eviction of licensee as well as decree for damages.
The defendant respondent contested the suit by filing W.S. where from it is clear that the defendant came up with a specific case that the deed of trust executed in favour of Nihar Bala is null and void deed and that Tulsi Charan Ghosh was ill at that point of time and taking advantage of that said deed was created by perpetrating fraud and, undue influence coercion and misrepresentation and as such the Court should not consider the said deed to be a valid one.
The defendant further claimed that during the lifetime of Tulsi Charan Ghosh as per oral family settlement distributed the said property in between the defendant and the plaintiff in equal share and that happened before 26 years of the filing of the written statement by the defendant. He further claimed that he is in possession of his portion of the suit property by taking electric connection and making necessary constructions therein. The defendant claimed that neither Niharbala nor plaintiff or Pratim (sister) have/had any interest or possession in respect of the suit property. The defendant alternatively claimed that he has also acquired title over the suit property by way of adverse possession. Before I part with the fact of this case, I like to mention here that Pratima, i.e. the full sister of the present appellant, filed one Misc. Case No. 371 of 1986 before the Sub- Divisional Judicial Magistrate, Uluberia, under Section 97 of the Cr.P.C. praying for issuance of search warrant for the recovery of her mother from the clutches of her brother, i.e. the appellant before this Court. That mother, Niharbala, was recovered and she made a statement before the Magistrate that she wants to stay with her daughter, Pratima and she further stated before the Magistrate that her husband gifted the property for division in between a son and daughter (Ext.-9).
This appellant filed one Title Suit No. 250 of 1986 against Pratima and Niharbala before the 1st Civil Judge (Junior Division), Uluberia, for declaration and injunction and an ad interim order of injunction was passed on 10th July, 1986 vide which the court restrained Niharbala from parting with the suit property. Niharbala executed and registered one deed of gift in favour of her daughter, Pratima on 23rd July, 1986.
It is the claim of the defendant that the said deed of gift was executed and registered before the order of injunction was communicated to Niharbala. The service return of show cause notice vis-à-vis the prayer for temporary injunction was filed before the Trial Court and was marked as Ext.-I which shows that the said notice was received by Niharbala on 23rd August, 1986.
Before the learned Trial Court the plaintiff examined himself as P.W.1. P.W.2 is one Haripada Senapati, one advocate who identified Tulsi Charan in that deed (Ext. 5), who proved both execution and attestation. P.W. 3 is Prasanna Kumar Samanta, that is the attesting witness in respect of the deed (Ext 5) as well as deed writer and P.W. 4, Pabitra Pande, who is a neighbour of the plaintiff who came to prove that the possession of the defendant is that of a licensee and that earlier the respondent/defendant was in Baul Khali in a rented house and he is one attesting witness of deed of gift executed by Pratima on 13.09.1999 (Ext
6).
On behalf of the defendant the defendant examined himself as D.W.1 and D.W. 2 one Debdas Ghosh, one cousin brother, who came to depose in favour of the defendant as regards the oral family settlement.
The plaintiff also relied upon several documentary evidence exhibit 1 was the draft copy of the records of rights of the suit property, exhibit 2 is the final LRROR in respect of Khatian 1676, in the name of Niharbala, exhibit 3 is the Government Tax receipt dated 15th November, 2000, exhibit 4 is the Municipal Tax receipt dated 05.03.2001 issued by Uluberia Municipality paid by the plaintiff. Exhibit 5 is the deed of gift in favour of Nihar Bala executed by Tulsi, exhibit 6 is the deed of gift in favour of the Appellant dated 13.09.1999 executed by Pratima Dhole, that is the sister of Kartik. Exhibit 7 to 12 are some copies of documents as regards the infighting between the mother and the sister on one side and this Appellant. It may be mentioned that Nihar Bala executed one deed of gift in respect of the suit property to his daughter by violating the order of injunction passed by one competent civil Court in Title Suit No. 250 of 1986 at Uluberia District - Howrah. The learned Trial Court was pleased to decree the suit on framing of issues and considering the evidence both oral and documentary, the learned Trial Court did not believe the case of the defendant as regards oral family settlement in view of the bar in the West Bengal Land Reforms Act and the Transfer of Property Act. The learned Trial Court further held that the defendant cannot claim title over the suit property by way of adverse possession as he has claimed title over the suit property by virtue of that oral settlement.
The first appellate court did not give much weight to the observation of the trial court that when the defendant failed to prove his title then his possession must be that of a licensee. The said court observed that the paintiff was interested to grab his mother's property by confirming her. The said court also held that the deed of gift executed by Tulshi in favour of Niharbala was only a deed of gift and not a deed of trust. The said court depicted the conduct of the plaintiff which resulted in filing of a criminal case against him for recovery of her mother. The court also held that as the plaintiff was not the owner of the property he had no authority to give a license and the act of the plaintiff was ultra vires. The said court gave benefit to the original defendant by attracting Section 63 of the Indian Easement Act, 1882 ( hereinafter called as the Act of 1882) as because he raised construction over the suit property.
The Division Bench of this court framed the following substantial questions of Law:-
a) whether the learned Court of Appeal below committed substantial error of law in reversing the judgment and decree passed by the learned Trial Judge by overlooking the fact that the plaintiff acquired title in respect of the property even by virtue of a deed of gift executed by his sister, namely, Pratima and thus, time of induction is immaterial in a suit for eviction of a licensee, if the title of the licensor is proved and the defendants fail to prove any right, title and interest in the property;
b) whether the learned Court of Appeal below committed substantial error of law in reversing the judgment and decree passed by the learned Trial Judge in overlooking the fact that the defendants had at least no title in the property by virtue of the deed of gift executed by his father in favour of his step-mother, namely, Nihar Bala;
c) Whether the learned Court of Appeal below committed substantial error of law in allowing the application for amendment of the written statement at the appellate stage and not allowing the application (sic) to adduce evidence in support of the first deed without giving an opportunity to the plaintiff to adduce evidence in rebuttal;
Mr. Indranath Mukherjee, learned Advocate appearing on behalf of the appellant took me to the recitals of the Exhibit '5' to convince this Court that in the deed there is clear recital why and in what circumstance Tulshi executed that deed of gift in favour of Niharbala. He submitted that the deed was registered and P.W. 2, identified Tulsi in that deed and also proved both execution and attestation. He took me to the evidence of P.W. 1 to say that the said witness duly proved his case through oral and documentary evidence. He also took me to the evidence of P.W. 2 to show that Niharbala did not produce the documents but Tulshi, her husband, produced the documents before him. He also took me to the evidence of P.W. 3, who came to prove the execution and writing of Kamakshya i.e. the person who wrote the deed.
Learned Counsel further submitted that when the evidence of P.W. 3 was recorded Kamakshya was dead and his handwriting was known to this man, P.W. 3.
As regards the evidence of P.W. 1 he submitted that though Arun Ghosh was given only two rooms as a licensee but no document was created considering the relationship between the parties, being step-brothers. He further submitted that a portion of the suit property was sold to Manoj Jana by P.W. 1 but Arun, the original defendant, did not challenge the said sale. He further submitted that the plaintiff himself produced the deed, Exhibit '5' from his custody. He also took me to the P.W. 4 to say that these witnesses claimed that Arun did not make any construction over the suit property. Learned Counsel submitted that the entire suit property has four rooms and Tulshi constructed all the four rooms in the year 1972.
Mr. Mukherjee further submitted by taking me to the evidence of D.W. 1 that no one told that police rescued the mother (Niharbala) from the custody of Appellant and on this point his argument was that at that particular point of time in the year 1986, had this D.W. 1 was residing in that house, he would have answered that he saw such recovery, but, in the same breath he submitted that this D.W. 1 thereafter tried to manage the situation by saying that on that date he was in the house of his in-laws but this D.W. 1 admitted that he did not disclose the said story to his Advocate.
He also claimed that the suit property is a three-room house with a foundation of four-room and that was constructed by the father of the parties and such construction was complete in 1972. He took me to the evidence of D. W. 1 to show that the D.W. 1 claimed that he had good relationship with Pratima, Niharbala and Kartick (the present appellant) but he did not take the name of his father and he also did not claim that he paid money for the funeral expenses of his father but he claimed that he paid the major portion of the funeral expenses of his step-mother. By pointing out this, Mr. Mukherjee tried to convince this court that this defendant was not residing in the suit premises at least when his father died.
Mr. Mukherjee submitted by taking me to the judgement of the learned trial court that the learned trial court came to this finding that this defendant was inducted as a licensee in the year 1394 B.S and prior to that, the defendant used to stay in a rented house. He also took me to the evidence of D.W.1 to show that even this defendant used to sleep in the shop room of his father.
Learned Advocate took me to the judgment of the learned trial court (internal page no.7) and submitted that in this case, the defendant has claimed only 50% ownership in respect of the suit property and that residue 50% belonged to this appellant and Nanibala and Pratima had no share. Learned Advocate further submitted that Pratima gifted her share over the suit property to the appellant vide Ext. 6 stating the ground therein and also recited in the deed what was the reason for execution of that deed and in that deed, she further disclosed that the deed executed by her mother was void and not acted upon deed. Learned Advocate stressed on the fact that in every case of gift, acceptance by donee is a must and here in the instant case before the floor of this court, the deed (Ext.6) will ipso facto show that the deed was not accepted by the donee, Pratima. Learned Advocate also submitted that there is recital in that Ext. 6 that the deed executed by Niharbala in favour of Pratima (Ext. B) is a void deed as that was executed when the order of injunction was still in force.
He also took me to Order 39 Rule 3(a) and 3(b) of the Code of Civil Procedure to establish his contention that the order of ex parte ad interim injunction was communicated both to Niharbala and her daughter and the said provision being mandatory one, that was duly complied with and there is no challenge on the part of the defendant on that score.
Regarding the oral settlement, Mr. Mukherjee submitted that as par West Bengal Land Reforms Act, 1955 and Transfer of Property Act, such oral transfer is not recognised under the law and that the learned trial court duly considered this aspect and even held that the oral Heba as per muslim law is not acceptable in the eye of law.
To establish this fact that this respondent/defendant came into the suit property as a licensee in the year 1394 B.S, learned Advocate submitted that all the documents relating to taking of electric connection relate to 1999-2000 (Ext. 'F' series and 'G' series). He took me to Ext. 'F' series to show that the water connection was taken in the year 1993 and by taking me to Ext. 'G-5' series, he tried to prove that such electric connection was taken in the month of August, 1999. He, however, submitted that the question on which date this respondent was inducted as a licensee is no factor in this case.
Regarding the taking of water connection and electric connection, he has submitted that as par the decision of this court as reported in AIR 2011 Cal 64 (Abhimanyu Mazumdar vs. Superintending Engineer & Anr.) even one unauthorised occupier is entitled to basic amenities like that of electricity which was the claim of the appellant before the High Court.
As regards the plea of adverse possession, learned Advocate submitted that it is true that in the judgment of the learned trial court, there is reflection that the said claim was abandoned by the defendant but still the learned trial court proceeded to say that whenever the defendant has claimed title over the suit property, he cannot claim adverse possession in respect of the same property.
He frankly submitted that the prayer for damages was rejected by the learned trial court and no cross appeal was preferred before the first appellate court.
He took me to the judgment of the first appellate court to show that in the heading of the said judgment, there is note that as if the said judgment was delivered by the learned Additional District Judge, 1st Court but taking me to the last page of the judgment and the subsequent documents prepared on the basis of that judgment, he submitted that actually the judgment was delivered by the 4th Court of Additional District Judge. He further submitted that after the disposal of the case, the court can direct the correction of the decree passed by the first appellate court and also that of the first page of the judgment.
Mr. Mukherjee relied upon Exhibit '5' i.e. the deed of gift executed in favour of Niharbala which according to the appellant was the deed of trust in the guise of a deed of gift, Exhibit '6' the deed of gift executed by Pratima in favour of the appellant, Exebit '9' i.e. the statement of Niharbala before the Executive Magistrate and Exhibit '12' i.e. the certified copy of the plaint of the Title Suit 250 of 1986 wherein the present appellant filed the suit for declaration and injunction that the defendant No. 1, being Niharbala was holding the properties as a trustee for the benefit of the plaintiff and the defendant No. 2 (Pratima) and that the transaction witnessed as per deed of gift Ext. '5' in fact and in essence created a trust in respect of the suit property. Thus, Mr. Mukjerjee contended that actually it is the specific case of the appellant that Exhibit '5'was a deed of trust.
Learned Counsel further submitted that one amendment petition was filed and the written statement was amended by incorporating paragraph 'para 20 ka' wherein it was claimed by the substituted appellants (in the meantime the original appellant died) that the deed executed by Niharbala on July 20, 1986 is one deed of gift vide which Niharbala transferred her entire share to Pratima and that ultimately Title Suit No. 250 of 1986 has filed before the Civil Judge (Junior Division), Uluberia, was ultimately dismissed on April 17. 2000 and that the deed executed in favour of Pratima was duly acted upon. He took me to paragraphs 17 and 18 of the W/S to show that the original defendant claimed that he made some construction work over the suit property during the lifetime of Tulshi. Thus, he contended that in fact 'para 20 ka' as inserted in the WS is totally in conflict with the case of the defendant respondent that the said defendant got 50% share over the suit property and neither Niharbala nor Pratima had any interest over the same. He also took me to the solenama executed by this appellant and Pratima as placed before the Court of Civil Judge (Junior Division) which has been marked as Exhibit '12' wherein it was admitted that the deed executed by Niharbala in favour of the Pratima was not acted upon. He also submitted that the said solenama is dated December 17, 1998 and that Exhibit '6' (deed executed by Pratima) was registered on September 13, 1999 wherein Pratima divested hereself from her right, title and interest over the suit property and gifted whatever right she had in favour of her full brother i.e. the appellant. He also took me to Explanation 2 of Section 14 of the Hindu Succession Act to convince this Court that in view of the explanation, Niharbala did not acquire any absolute title over the suit property and her interest was limited to the desire of her husband to distribute the suit property equally in between the present appellant and Pratima.
Learned Counsel further submitted by taking me to Exhibit '6' that Pratima in that deed incorporated the fact in details in that deed. He also took me to Section 52 of the Transfer of Property Act to convince this Court that even if, transfer was legally made by Niharbala in favour of Pratima without the leave of the Court then as per explanation attached to Section 52 of the Transfer of Property Act, 1982, then the doctrine of lis pendency will apply as if the said Deed was not executed.
Learned Counsel further submitted that the suit, being Title Suit No. 250 of 1986 was ultimately dismissed for non-prosecution as per order No. 13 dated April 17, 2000 and that was very natural after the execution and registration of deed of 1999 by Pratima in favour of her brother and after the death of the mother there was no life in the said suit and as such it was allowed to be dismissed for non-prosecution as per petition filed by the present appellant.
As regards applicability of the Act of 1882, as applied by the learned 1st Appellate Court he has submitted by taking me to Goyle's Law of Easement and Licence, 3rd Edition by S.A. Quader that the said Act of 1882 is not applicable in West Bengal and as such benefit given by the 1st Appellate Court to the defendant was not in conformity with the legal position.
He also took me to page 52 of the paper book to show that the learned 1st Appellate Court introduced the story of repudiation of the deed executed by Niharbala in favour of Pratima but in fact the suit was filed for declaration of title and permanent injunction but later on the plaint had to be amended as it was claimed by Niharbala and Pratima in that suit that already Niharbala executed the deed of gift in favour of Pratima.
He relied upon a Single Bench decision in the case of Kumaresh Majumdar Vs. Shrimati Binapani Sarkar & Ors., reported in 2001 (2) CLJ 475 by taking me to paragraph 23 to show that when the plaintiff was able to prove the title in respect of both the land and the structures standing thereon, the defendants were in fact licensees under the plaintiff. The Court further held that if the deed of gift was executed in favour of the plaintiffs, it could be safely presumed that fresh licence was granted in favour of the defendants.
On the same point the learned Counsel also relied upon a decision of the Division Bench of this Court in the case of Tarumoni Mondal & Ors. Vs. Prafulla Kumar Mondal & Ors., reported in (2006) 2 WBLR (Cal) 82 and in that case the Division Bench in paragraph 24 observed, it is now settled law that even if actual induction as licensee is not proved, the moment the plaintiff establishes absolute title to the property and the defendant fails to establish his title in the property, the plaintiff is entitled to get a decree for eviction as a matter of course simply on the basis of title.
As regards substantial questions of law No. (a) Mr. Mukherjee submitted that he has already cited a Single Bench decision of this Court and also a Division bench decision of this Court on this point that time of induction is immaterial in a suit for eviction of a licensee, if the title of the licensor is proved and the defendants fail to prove any right, title and interest in the property.
As regards substantial questions of law No. (b) he submitted that the learned 1st Appellate Court practically overlooked the fact that the defendants acquired no title over the property by virtue of that alleged oral settlement executed by his father Tulshi in favour of his stepmother Niharbala.
As regards substantial questions of law No. (c) Mr. Mukherjee contended that as per Section 105(1) of the Civil Procedure Code this Court of Second Appeal has every jurisdiction to consider whether the said amendment as made by the defendants before the 1st Appellate Court was lawful.
He further submitted that in the 1st Appellate Court no evidence was adduced by the appellants and as such this appellant before this Court was deprived of a valuable right to cross-examine the witnesses on that point and that the respondent before the 1st Appellate Court being the appellant before this Court did not get any opportunity to adduce any evidence to revert that written statement (Paragrah '20 ka').
Learned Advocate further submitted that in West Bengal Indian Easement Act, 1882, is not applicable but even if it is said that Easement Act is applicable in West Bengal then even the following decisions will establish that this defendant can at best be licensee or less than it : (a) Conrad Dias of Bombay Vs. Joseph Dias of Bombay, reported in AIR 1995 Bom. 210, the case from Maharashtra where Easement Act as applies and in that case before the floor of the Bombay High Court it was treated that a person who is residing with the parents in the house cannot claim any legal character much less, the character of a licensee as defined in Section 52 of the Act of 1882, but he is residing simpliciter, as a member of the family and nothing more and nothing less.
(b) Shri Arjan Dev Vs. Shri Om Prakash, reported in AIR 1992 Del. 202, wherein a Division Bench of that High Court held that contradictory claim made by a member of a Joint Hindu Family cannot be maintainable as the said brother pleaded ownership on the property being a member of that Joint Hindu Family and also put a contrary claim that he acquired title over the property by way of adverse possession. The Division Bench concluded that the possession of a defendant brother was that of a licensee.
(c) Panchugopal Barua and Others Vs. Umesh Chandra Goswami and Others, reported in AIR 1997 SC, the Apex Court held on the facts and circumstances that Easement Act cannot be extended to give favour to such of litigant. It may be noted that in Assam Easement Act is not applicable. The Apex Court held that justice, equity and good conscience cannot be pressed into aid of a person who has not come in clean hands:
He ended his argument by taking me to page 23 of the Goyle's Law of Easement Licences, 3rd Edition, that there is difference between easement and licence as licence is merely personal and does not run with the land and a deed is generally necessary to grant an easement, but unnecessary to give a licence. The Author further said that thus a right in easement is a right in rem whereas a right in licence is a right in personam.
It is submitted by Mr. Mitra that the licence becomes irrevocable if the construction is made within the said land with the knowledge of the licensor without any written agreement to the contrary. He cited a decision of the of the Hon'ble Apex Court in the case of Ram Sarup Gupta (Dead) by LRS Vs. Bishun Narain Inter College & Ors., reported in AIR 1987 SC 1242, wherein paragraph 15 of the said decision the Apex Court held that within the knowledge of the person granting the licence, construction of additional building was made and as such by applying Section 60(b) of Act of 1882, such licence becomes irrevocable one. The Hon'ble Apex Court concurred with the findings of the learned Trial Court as also the High Court. Mr. Mitra fairly submitted that this case arose from Uttar Pradesh where act of 1882 has been extended by the legislature.
He again took me to the said judgment to say that the principle of irrevocable licence was codified in Section 60(b) of the Act of 1882.
He further submitted that admittedly in that case this plaintiff did not give any notice of revocation of the licence. On this point he submitted by taking me to a decision of the Division Bench of this Court in the case of Radha Prosad Sharma Vs. Sm. Bejoy Sett, reported in 1996 (1) CLJ 557, wherein the Division Bench held that licensee should be informed about such revocation requiring him to vacate the licensed premises and that the Courts do exist to advance the cause of justice and not to hinder it and the justice must not be a handmaid to technicalities.
Mr. Mitra further submitted by taking me to the decision of this court as reported in 71 CWN 302 (P. Bhaskaran & Ors. Vs. The Indian Iron & Steel Co. Ltd. & Ors.) wherein this court held that the test as to whether the licence is revocable one or whether it is one irrevocable licence is that whether the structure therein was allowed to be retained or demolished after such an object is achieved. The court also held that one structure may be kutcha structure or one may be pucca structure but that is not any determining factor to say that the licence was irrevocable one because of the nature of the structure.
He also cited a decision of the Apex Court as reported in AIR 1965 SC 610 (Mrs. M. N. Clubwala & Anr. Vs. Fida Hussain Saheb & Ors.) in Paragraph 12 wherein the Apex Court observed that the notice to vacate is required. He further submitted that this judgement was also relied upon the by this court in 1996(1) CLJ 557 ( Radha Prosad Sharma Vs. Sm. Bejoy Sett).
He also cited a decision of the Apex Court reported in AIR 2013 SC 2389 (Thomson Press (India) Ltd. Vs. Nanak Builders & Investors P. Ltd. & Ors.) wherein the court held that even when a transfer is made during the force of injunction order that will not make the transfer void but it may lead to punishment of the party concerned. He also cited a decision of the Apex Court as reported in AIR 2006 SC 2832 ( Baldev Singh & Ors. etc. Vs. Manohar Singh & Anr. etc.) to support the claim of the defendant as regards alternative plea or even inconsistent plea while making a defence or filing one amendment petition.
In reply, Mr. Mukherjee submitted by taking me to paragraph 17 of the written statement to say that it was no case of the defendants/defendant that he was a licensee either under Tulsi or under Niharbala or under the present petitioner but the defendant categorically claimed that was 50% owner of the property along with this appellant and that now this defendant is changing himself from his original stand. He further submitted by taking me to that paragraph of the written statement that this defendant did not claim what type of construction was raised over the suit property and that the defendant did not try to prove when such construction was made, what was the cause of such construction, whether any sanction plan was obtained prior to such construction etc. etc. Learned counsel took me to Section 60 (b) of the Easement Act of 1882 to convince this court that "the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution"
(emphasis supplied by me) that only then the licence becomes irrevokable licence and in the present case before the floor of this court, there is no iota of evidence that the original defendant executed any work of permanent character 'acting upon the licence'.
Mr. Mukherjee further submitted by taking me to Section 61 of the Act of 1882 to convince this court that the revocation of licence may be either express or implied. He took me to the examples given in that section. He further submitted that the decision of this court as passed in Radha Prasad Sharma (supra) cannot be said to be a good law as it is factually different from this case.
He further submitted that the said decision was delivered on 16th February, 1996 whereas the decision of the Apex Court as reported in AIR SC 1041 (Pancugopal Barua and Others Vs. Umesh Chandra Goswami & Ors.) was delivered on 12th February, 1997.
Thus, he tried to reiterate that when the decision of 1996 was delivered, the Apex Court did not say that the Act of 1882 has no application in West Bengal. He also took me to page no.333 of Goyle's Law of Easement & Licence, 3rd Edition of S.A. Kader to convince this court that there may be express or implied revocation.
On this point, he has cited the decision as reported in AIR 1956 Cal 79 (Raghupati Roy & Ors. vs. Debu Karmakar & Ors.) wherein this court held that where the licensor files a suit possession against the licensee that is enough notice. On this point, he also cited a decision of this court as reported in AIR 1971 Cal 435(Smt. Sayambari Dassi vs. Dwijapada Naskar) wherein the Hon'ble Single Judge held that the licensee has no interest in the property but only a personal privilege and as such, a revocation of the licence by demand for possession is not always pre-condition for institution of an eviction suit against him and it depends on facts of each case.
I have noted in details the argument put forward by the learned advocate on behalf of the parties. The first question is to be decided by this Court actually whether this appellant is the owner of the property as claimed by him in the plaint. I have already said that the defendant made out a case before the learned trial court that he was the owner of 50% share of the suit property as per one oral family settlement given by his father. This story later on abundant and the original defendant and thereafter his legal heirs took up a positive case that the original defendant was a licensee. The next question is whether the licence was granted during the life time of Tulsi or later on by this appellant. The Indian litigants do not come to court with truth in their mouth and as such the courts are to be vigilant to pick up the truth from the evidence on record. The fact remains that the original defendant was the son of Tulsi. There is no positive clear evidence that during the life time of Tulsi he was driven out of the property by Tulsi. This Court is not unmindful of the fact that in the deed executed by Tulsi in favour of Niharbala there is a recital that this defendant was not taking any information of Tulsi. It is true that there is also recital in that deed that Tulsi gave his running business to the original defendant. It may also be noted that in the said deed there is also recital that the full brother of the defendant became a doctor. This Court on scrutiny of the evidence on record is satisfied that the original defendant was there in the suit property even during the life time of Tulsi. This Court is not unmindful of the evidence adduced by one PW that the said defendant used to reside in a rented house and came to the suit property as a licensee only in 1394 B.S. The plaintiff appellant did not try to prove further by bringing any landlord of the original defendant before the court to prove that actually before 1394 B.S. this original defendant was a tenant under any such landlord. Picking the chaff from the grain this court may reiterate that the original defendant did not come to the suit property as a licensee in the year 1394 B.S. but he was very much there prior to that even during the life time of Tulsi. It is also apparent from scrutiny of evidence of the parties that the relationship between this step brother and the appellant was not good and as such this Court cannot put a stamp on the claim of the plaintiff appellant that this original defendant was indicated as a licensee by him.
This finding of this court will not however change the total picture of the suit as because this court is satisfied that later on this plaintiff became the full owner of the suit property. Whether the deed in favour of Niharbala was a deed of trust or a deed of gift is immaterial now as after the death of Niharbala the said property ought to have devolved upon her son and daughter that is the plaintiff and Pratima. oNe deed of gift was executed by Niharbala in favour of Pratima during the pendency of Title Suit No.25 of 1986. The deed executed by Pratima in favour of his brother, that is the plaintiff clearly goes to show that the gift as made by Niharbala in favour of Pratima was not accepted by her and as such the said deed of gift made in favour of Pratima was not a valid deed.
This court is not unmindful of Section 14 (2) of the Hindu Succession Act, 1956 and as per that sub-section by virtue of the deed of gift (Ext.5) Niharbala acquired only restricted estate over the suit property and she was bound to transfer the suit property only to her son and daughter as desired by her husband Tulsi. Thus, the property rightly devolved upon this plaintiff alone by way of inheritance and by virtue of the deed of gift executed by Pratima in his favour.
The status of the original defendant in the suit property under Tulsi was much less that of a licensee only as per the decision of the Bombay High Court as passed in Conrad Dias of Bombay. After plaintiff appellant became the absolute owner of the suit property and was already owner to the extent of 50% of the suit property the status of the original defendant ripened to the status of a licensee under his step brother as it was not the possession of a trespasser and the plaintiff appellant did not terminate the said licence by filing any eviction suit soon after he became the owner of the property after the death of her mother and after the execution and registration of Exhibit-6. Thus, it is the clear finding of this court that the original defendant was a licensee under this plaintiff appellant. In answering substantial question (a) this Court is satisfied that the court of First Appeal committed substantial error of law in reversing the judgment and decree passed by the learned trial court by framing the fact that the plaintiff acquired title in respect of the property and this court affirms that the plaintiff acquired good title over the property by way of inheritance after the death of his mother and through the deed of gift executed by Pratima in his favour. It is immaterial when or how the original defendant came in possession of the suit property. If the title is established it is immaterial when the licensee came into the suit property thus this point (a) is answered in the favour of the appellant. Regarding the point (b) this court is of the view that in view of Section 14 of the West Bengal Land Reforms Act, 1955 no oral transfer is possible. It may be noted that at the time of argument this plea of appeal transfer as made out by the original defendant before the trial court was abandoned and the main argument of the learned advocate appearing on behalf of the respondent was under the Easement Act, 1882. Thus this question (b) is also answered in favour of the plaintiff appellant.
The First Appellate Court in its judgment set aside the judgment and decree passed by the learned trial court by invoking the provisions of the Indian Easement Act, 1882 relying on the claim of the defendant that he raised construction over the suit property and as such the licence which he was holding in respect of the suit property becamse irrevocable one. It is true that Act of 1882 has no application in West Bengal but it has been held time and again by this court that the principle as laid down in the said act will apply as far as practical in a fixed case. Now the question is whether this defendant raised any permanent structure over the suit property. In paragraph 17 of the written statement this defendant claimed that he made construction over the property but he did not divulged thereunder that what type of construction he made. He did not submit any sanction plan of the municipality to raise such construction. As DW-1 he claimed that he constructed one privy over the suit property it is true that such construction may be treated as permanent construction as it had not a fixed period for its removal. On that point much was argued by Mr. Mitra the learned lawyer appearing on behalf of the respondent.
The question now is whether the original defendant raised that construction that is privy 'acting upon the licence'? it may be noted that this original defendant never claimed himself to be a licensee either under the present appellant or under Niharbala or under Pratima and not to speak of Tulsi. It was his case all along that he was 50% owner of the suit property by way of oral settlement. When the suit progressed the defendant thought that such claim had no legal backing and as such he deviated from his original claim and tried to establish his possession as that of a licensee. Thus, the original defendant abandoned his claim as regards his title over the suit property and as such this court can very much apply the decision of this court as reported in 21 (2) CLJ 475 (Kumaresh vs. Smt. Binapani and Ors.) where the court held that when the defendant could not prove title then the presumption will be there that the defendant is a licensee. This court relying on the evidence of DW-1 can say that this defendant raise one privy in the suit property for the enjoyment of the said licensee such construction of a privy was necessary and he did the same. This court is satisfied that such construction made by the original defendant was not acting upon the licence as this defendant did not claim that he was a licensee ever. The defendant/defendants/respondents cannot blow hot and cold at the same time just to cliche the issue in his/their/there favour. Thus, relying on Section 60B of the Act of 1882 this court is satisfied that the construction was raised cannot be protected by imparting the principle of the Act of 1882. Thus, this court is satisfied that the licence did not become irrevocable licence because of such construction.
Now the question is whether this defendant was entitled to get a notice of eviction of the said licence? On that point this court can safely bank upon the decision of this court as passed in Raghupati Roy (supra). It is the view of this court relied upon those judgments that presentation of a plaint for eviction of a licensee is enough notice of eviction as soon as the copy of the plaint is served.
Regarding the substantial question (c) as per the order of the First Appellate Court the plaint was amended after the suit prevailed before this court in CO. No.669 of 2005 wherein this court directed the defendant no.1 to file one amendment petition and also directed the learned First Appellate Court to dispose of the matter without being influence as regards the observation made by this court. It is true that in this appeal the propriety of the said order, order for amendment of the written statement can be assailed by this court and this substantial question (c) was framed on that matter.
As per that amendment para 20 'Ka' was inserted I have gone through the said amendment petition dated 10th of November, 2008. The recitals of para 20 'Ka' as I get all happened before the suit was filed and if the claim of the original defendant that he used to reside in the said premises as divulged in that paragraph of the written statement were perfectly within the knowledge of the original defendant but he did not mention all such facts in the original written statement and filed the amendment petition before the First Appellate Court just to delay the proceeding. This court is satisfied that all the recitals of that paragraph para 20 'Ka' of the written statement was very much within knowledge of the original defendant and it was his lapse not to divulge the same in the original written statement. Thus, the amendment petition ought not to have been allowed by the learned First Appellate Court. It may also be noted that the parties were not allowed to adduce evidence even after such amendment was made in the written statement.
Thus, this court reiterates that the First Appellate Court committed substantial error of law in allowing the said application for amendment of the written statement. Thus, this substantial question (c) is also answered in favour of the appellant.
Thus, in view of the discussion so long made this court is satisfied that there was no earthly reason on the part of the First Appellate Court to reverse the judgment and decree passed by the learned trial court. The learned First Appellate Court definitely erred in reversing the said judgment only applying the principles of the Indian Easement Act, 1882 which was not at all pleaded by the defendant at the time of trial. Thus, the judgment and decree passed by the learned First Appellate Court is hereby set aside the judgment and decree passed by the learned trial court is hereby restored. This second appeal is thus allowed on contest without any order as to costs.
Before I depart I like to mention that actually the first Appellate Court was the court of 4th Additional District Judge of Howrah, and not the First Court of the Additional District Judge of that district. It is true that in the first page of the judgment of the First Appellate Court and in the decree there is mention that the judgment and decree was passed by the learned court of First Additional District Judge, Howrah. Thus, the department is directed to transmit the judgment and decree passed by the First Appellate Court for necessary correction as mentioned in this paragraph. I reiterate that it will be the court of the learned Additional District Judge 4th Court instead of Additional District Judge First Court Howrah. The department is directed take early action in this regard within 7 days from today and the correction of the judgment and decree must be made by the First Appellate Court within 7 days from the transmission of the judgment and decree by special messenger.
Permission is accorded to the learned Advocate of the appellant to amend the cause title of the memo of appeal after such correction of decree is made. Department is directed to amend the relevant registrars of this court to match with the corrected judgment and decree.
The appellant will deposit the special messenger cost to transmit the judgment and decree along with the lower court records to the learned First Appellate Court such cost must be deposited within 3 days from this day before the concerned department.
Department is directed to transmit the copy of this judgment along with the record to the First Appellate Court after the necessary corrections as noted above are made in the judgment and decree.
(Indrajit Chatterjee, J.)