Calcutta High Court
Ram Nath Jhunjhunwala vs Saha & Company on 12 April, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 2 of 2022
In CS 156 of 2017
Ram Nath Jhunjhunwala
Versus
Saha & Company
Mr. Debnath Ghosh
Mr. Sarosij Dasgupta
Ms. Saheli Bose
Mr. Biswaroop Mukherjee
Ms. Smita Mukherjee
... for the plaintiff.
Mr. Rishad Medora
Mr. Abhirup Chakraborty
... for the defendant.
Hearing concluded on : 27.03.2023
Judgment on : 12.04.2023
Krishna Rao, J.:
The plaintiff has filed the instant application for pronouncement of final Judgment against the defendant under Chapter XIIIA of the Original 2 Side Rules of this Court for recovery of vacant, peaceful, khas and physical possession of the suit premises being premises No. 207, Maharshi Debendra Road, Kolkata - 700007. The trustees of one Ganpatrai Khemka Charitable Trust, granted lease to Radha Kishan Jhunjhunwala (since deceased) i.e. the predecessor-in-interest of the plaintiff, by an indenture of lease dated 23rd April, 1962, which was duly registered before the Registrar of Assurance, Calcutta in the year 1962, in consideration of monthly rent, reserved and secured therein, in respect of suit property for a period of 51 years, with the option for renewal for a further period of 20 years, from the date of expiry of the said term of 51 years, with the condition that the said Radha Kishan Jhunjhunwala shall build a permanent structure upon such demised premises. Plaintiff has exercised his option to extend its original lease for another 20 years, and the same is still subsisting.
The Trustees of Ganpatrai Khemka Charitable Trust transferred the ownership right of the said premises to one Jhunjhunwala Resorts Limited by way of four Deed of Conveyances in the year 1992. Radha Kishan Jhunjhunwala continued as lessee under the Jhunjhunwala Resorts Limited, on the same terms and conditions as contemplated in the lease of 1962. Radha Kishan Jhunjhunwala entered into an oral agreement with the defendant, for a sub-lease and sub-demise open space, being the suit premises for a period of 21 years commencing from 31st December, 1994.
The said Radha Kishan Jhunjhunwala died on 13th October, 1996. In terms of the Will dated 30th March, 1981, the plaintiff being the sole 3 executor is managing the entire estate, including the premises left behind by the Radha Kishan Jhunjhunwala.
The plaintiff herein had executed a formal registered Indenture of Lease Deed dated 21st January, 1997 in favour of the defendant for a period of 21 years from 31st December, 1994. The sub-lease dated 21st January, 1997 was given effect and the period of 21 years was completed on 1st January, 2016 and thus the lease terminated by efflux of time. Before expiry of lease period, the plaintiff had issued a notice dated 5th October, 2015 to the defendant calling upon the defendant to vacate the suit premises and to hand over vacant and peaceful possession to the plaintiff upon completion of the period of 21 years. In the said notice, the plaintiff also informed to the defendant, that in default, suit for recovery of possession shall be instituted. Inspite of receipt of notice and termination of lease, the defendant has not vacated the suit property.
Mr. Debnath Ghosh, Learned Advocate, representing the plaintiff submits that the defendant has no defence whatsoever to the claim of the plaintiff. He further submits that the defendant has not filed written statement till date.
Mr. Ghosh submits that the defence raised by the defendant with regard to the overvaluation of the suit cannot deter this Hon'ble Court from passing a summary judgment. He further submits that acceptance of plea of overvaluation alleged by the defendant would encourage the tenant to permit him to carry on a dilatory litigation without compensating the landlord for the loss suffered by the landlord.
4
Mr. Ghosh submits that the defendant has raised the ground that the suit property is a Thika property but the said plea will not stand as both applications filed by the defendant before the Thika Controller as well as the notice for spot verification issued by the Thika Controller are subsequent to the institution of the instant suit for eviction.
Mr. Ghosh submits that the defendant has relied upon an Indenture of Lease Deed dated 14th January, 1974 which also reveals that the defendant has inducted in the suit property as lessee by the plaintiff and the defendant has made payment of rent to the plaintiff.
Mr. Ghosh relied upon Section 116 of the Evidence Act and submits that rule of estoppel between the landlord and the tenant has three main features that is (i) the tenant is estopped from disputing the title of his landlord over the tenanted premises at the beginning of the tenancy, (ii) such estoppel continues to operate so long as tenancy continues and unless the tenant has surrendered possession of the tenanted premises to the landlord and (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and the tenant. The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit, the requirement of an individual case.
Mr. Ghosh submits that defendant has paid rent to the plaintiff in respect of the suit property as per lease deed and by reasons whereof, cannot deny the title of the plaintiff in the suit property subsequently. He further submits that the assessment book of the Central Record Department 5 of the Kolkata Municipal Corporation reveals that the suit property was described as house and shop.
Mr. Ghosh relied upon following judgments :
i. (1976) 1 SCC 295 (M/s Mulavi Abdur Rub Firoze & Co. -vs- Jay Krishna Arora).
ii. (2002) 2 SCC 50 (Vashu Deo -vs- Balkishan).
iii. (1987) 3 SCC 705 (Nandita Bose -vs- Ratanlal Nahata).
iv. 2015 (4) CHN 213 (Amala Palit and Others -vs- Ratna Bose and
Others).
v. 2006 SCC Online Cal 441 (Prakashwati Chopra -vs- Sibaji Mitra).
vi. (Nimai Chandra Kumar (D) Through LRS & Ors. -vs- Mani Square
Ltd. & Ors.).
Per contra, Mr. Rishad Medora, learned Advocate representing the defendant submits that this Court does not have jurisdiction to entertain, try, determine or adjudicate the present suit. He further submits that this Court does not have any pecuniary jurisdiction to entertain the suit filed by the plaintiff and thus the application filed by the plaintiff is required to be dismissed.
Mr. Medora submits that the defendant is a Thika tenant of the suit property and any dispute whether the defendant is a Thika tenant or not is the subject matter of the Thika Controller under the provisions of WBTT (A &R) Act, 2001 as amended. He submits that the subject property of the present suit is within the area of Posta Market whereas most of the businesses structures have already been approved by the Learned Thika Controller.6
Mr. Medora submits that the fact of construction of the structure on the subject land on the southern side of premises No. 207, Maharshi Debendra Road, Kolkata was within the knowledge of the erstwhile landlord at all material point of time. That the defendant complied with all legal requirements as laid down in Section 2(5) and 3(8) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 respectively and the defendant comes within the purview of Thika Act. Mr. Medora submits that the plaintiff has valued the suit on the basis of the existing market value of the premises but the plaintiff has filed the suit for eviction on the ground of efflux of time and thus the suit ought to have been valued under the provisions of Section 7(XII) of the West Bengal Court fees Act, 1970. He submits that the monthly rent of the premises is Rs. 2000/- per month inclusive of maintenance charges at the time of filing of the suit and thus the valuation of the suit ought to have been Rs. 24,000/- but the plaintiff has overvalued the suit property as per market rate.
Mr. Medora submits that the suit filed by the plaintiff is barred under Section 21 of the West Bengal Thika Tenancy (A&R) Act, 2001 and thus no order can be passed in the present application.
Mr. Medora relied upon following judgments:
i. (2022) 10 SCC 1 (Patil Automation -vs- Rakheja Engineers). ii. AIR 1930 Cal 42 (Govinda Kumar Sur & Ors. -vs- Mohini Mohan Sen & Ors.).
iii. 1999 SCC Online Cal 464 (Nellimarla Jute Mills Company Ltd. -
vs- Rampuria Industries & Investments Ltd.).7
iv. 2017 SCC Online Cal 19153 (Prabash Aich and Another -vs- Sri Shiv Shankar Aich and Others).
In paragraph 21 of the plaint, the plaintiff had specified the value of the suit property at Rs. 3.57 crores being the market value of the suit property. The plaintiff has shown the said value as per the valuation report of Talbot & Co. In the case of M/s Maulavi Abdur Rub Firoze Ahmed & Co. (Supra), the Hon'ble Supreme Court held that :
"4. Under Section 8 of the Suits Valuation Act, 1887, except in few exceptions mentioned therein, the value of the suit for the purposes of court fee and jurisdiction is the same Under Section 7(xi)(cc) of the Court Fees Act, 1870 the amount of court fee payable in a suit for the recovery of immovable property from a tenant is on the amount of rent for the suit premises payable for the year next before the date of presenting the plaint. If the suit were to be instituted in a court to which the two acts would apply the value of the suit both for the purposes of jurisdiction and court fee will be the amount of rent payable during the preceding 12 months. But on the original civil side of the Calcutta High Court the procedure followed and the law applicable is different.
5. In the instant case the rental was about Rs 110 per month. On that basis the value of the suit ought to have been Rs 1320 only. That being so the suit, according to the contention of the appellant, was entertainable only by the city civil court and not by the High Court. The argument so presented does not, however, stand scrutiny. Within the local limits of ordinary original civil jurisdiction of the Calcutta High Court the legislature thought to provide that if the value of the suit exceeded Rs 10,000 it was only entertainable by the High Court at Calcutta. If the value was below Rs 10,000 the city civil court only will have the jurisdiction. But apart from the value of the suit if the value of the suit premises of which the recovery of possession is claimed exceeds Rs 10,000 then the city civil court will have no jurisdiction to try such a suit. Only the High Court can entertain such a suit. The intention of the legislature seems to be that if the value of the premises exceeds Rs 10,000 then irrespective of the value of the suit, the suit can be entertained only by the High Court and not by the city civil court.8
6. But that apart, we may also rest our judgment on a simple basis. Assuming the plaintiff could have valued his suit at Rs 1320 but he chose to value it in accordance with the value of the suit premises, there was nothing in law to compel him to put the lower valuation and not the higher. The value of the suit premises mentioned in the plaint cannot be said to be contrary to law and the plaintiff is not obliged to put the 12 months' rental value. In the instant case the plaintiff asserted in his plaint that the value of the suit premises exceeded Rs 10,000. The defendant asserted in its written statement that the suit was "under-valued"; it ought to have been valued at the amount of one year's rent. Perhaps the use of the word "under-valued" is a mistake for the word "over-valued". The statement in the plaint being squarely in accordance with the law and not contrary to it, the High Court was the proper forum for the institution and trial of the suit. The plaint could not be instituted in the city civil court."
In the case of Nellimarla Jute Mills Company Ltd. (Supra), the Division Bench of this Court held that:
"7. It has been stated that the suit has been valued on the basis of the market value of the property under Section 7(vi)(a) of the West Bengal Court Fees Act, 1970 which reads thus:--
"(vi)--In a suit for recovery of possession of immovable property form--
(a) a trespasser, where no declaration of title to property is either prayed for or necessary for disposal of the suit--according to the amount at which the relief sought is valued in the plaint subject to the provisions of Section 11."
8. Under the Court Fees Act law as also under the West Bengal Court Fees Act suit has to be valued in terms of the provision thereof. A suit for recovery of immovable property from a tenant including tenant holding over after the determination of the tenancy, a suit for eviction of tenant would still be a suit between the Landlord and Tenant, not a suit between the owner and a rank trespasser.
18. It is true that for the purpose of valuation of a suit for determination of the Court fees payable thereon, the 9 averments made and the reliefs sought for in the plaint determines the character of the suit. Clause (v)(a) of Section 7 of the West Bengal Court Fees Act cannot, thus, be said to be applicable in this case as the same is applicable where a suit is filed against the defendant who was a trespasser from the very beginning. The word 'trespasser' has a variable meaning and it is used in different context in different statutes. So far as the West Bengal Court Fees Act is concerned, the word 'trespasser' must mean a trespasser from the very beginning and not a trespasser who had original title but lost the title because of efflux of time by reason of an agreement between the parties of by operation of law."
Hon'ble Division Bench of this Court while deciding the case of Nellimarla Jute Mills Company Ltd. (supra), the judgment passed by the Hon'ble Supreme Court in the case of M/s. Maulavi Abdur Rub Firoze Ahmed (Supra), was not brought to the notice of the Hon'ble Division Bench. In view of the settled position of law, this Court finds that the plaintiff has properly valued the suit property.
The defendant has enclosed an Indenture of Lease Deed dated 14th January, 1974 which reveals that the defendant has been inducted in the suit property as a lessee by the plaintiff and the defendant has paid rent to the plaintiff. No tenant or lessee or licensee of an immovable property can be permitted to deny the title of the landlord to such immovable property. In the present suit admittedly, the defendant has made payment of rent to the plaintiff for long period as a lessee in respect of the suit property and never raised any dispute with regard to the title of the plaintiff. In the judgment reported in the case of Vashu Deo (supra), the Hon'ble Supreme Court held that :
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"Section 116 of the Evidence Act, which qualifies the common-law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features: (i) the tenant is stopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy, (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord and (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant. The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case. Rule of estoppel which governs an owner of an immovable property and his tenant would also mutatis mutandis govern a tenant and his sub-tenant in their relationship inter-se. As held by the Privy Council in Currimbhoy & Co. Ltd. -vs -L.A. Creet and Bilas Kunwar -vs- Desraj Ranjit Singhthe estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once tenant has been evicted."
The defendant has filed applications before the Thika Controller and the notice for a spot verification issued by the Thika Controller are subsequent to the filing of the present suit for eviction by the plaintiff. In the case of Amala Palit (supra), the Hon'ble Division Bench of this Court held that mere deposit of rent with the Thika Controller cannot ipso facto create a Thika tenancy.
In the case of Nemai Chandra Kumar (supra), the Hon'ble Supreme Court held that:
"28. The suggestion that the expression "any structure", in its plain meaning ought to be construed as inclusive of all 11 structures whether kutcha or pucca, needs to be rejected for a variety of reasons.
28.1. In the Act of 1949 as originally enacted, even though the expression "any structure" had been used but, it was consistently maintained by the Calcutta High Court with reference to the object and purpose of Act of 1949 and its frame that, the definition of "thika tenant" would not include pucca structure because the enactment was otherwise not dealing with the rights and liabilities of the tenant, for which the provisions of Transfer of Property Act were required to be referred to; and such a proposition was also in accord with Section 2(6) of the Act of 1949; and per Section 108(p) of the Transfer of Property Act, a pucca structure was not permissible. In Jatadhari Daw & Grandsons (supra), the Division Bench of the High Court, even while construing the Act of 1981, proceeded on the same lines and held that the expression "structure" in the statute did not include permanent structure.
28.2. The Full Bench of the High Court in Lakshmimoni Das (supra) meticulously examined variegated aspects of the matter and various provisions of enactments and also different pronouncements while holding that construction of kutcha structure on the lease hold land was a sine qua non for constituting thika tenancy. We find such interpretation to be in accord with the very object and purpose of these enactments, at least until the enforcement of the Amendment Act of 2010 w.e.f. 01.11.2010; and the submission of learned counsel for the respondent No. 1 based on the doctrine of stare decisis deserves to be accepted that the interpretation of this particular term "any structure", which has been holding field for more than half a century ought not to be disturbed or unsettled. In Shanker Raju (supra) this Court had held that:--
"10. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim stare decisis et non quieta movere, which means "to stand by decisions and not to disturb what is settled". Lord Coke aptly described this in his classic English version as "those things which have been so often adjudged ought to rest in peace". The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view 12 which has held the field for a long time should not be disturbed only because another view is possible...."
28.3. There are several indications which unfailingly lead to the conclusion that "any structure" which was employed in the Act of 1949 and was further employed in the Act of 1981 and also in the Act of 2001 for the purpose of creation of thika tenancy referred only to kutcha structure until the year 2010. The first and foremost indication comes from the amendment of the Act of 1949 by Act of XXIX of 1969 whereby clause (4a) was inserted to Section 2 and then Section 10A was inserted to the enactment which, in effect, invested a right in the thika tenant to erect a pucca structure when using the land in question for a residential purpose but only with permission of the Controller.
If pucca structure was a part of the definition of thika tenant in clause (5) of Section 2, Section 10A was never required to be inserted to the Act of 1949. Then, in the Act of 1981, even when the legislature provided for acquisition of land comprised in thika tenancy and other lands, the principal part of the definition of thika tenant remained the same; only the other three exclusion conditions, as occurring in clause (5) of Section 2 of the Act of 1949 were removed. However, the Act of 1981, as originally enacted, never provided for creation of thika tenancy by the event of tenant erecting or acquiring by purchase or gift, any pucca structure. 28.4. Of course, by amendment of Section 5 by the Amendment Act of 1993, it was introduced that even "other land" under lease could be acquired but, the purpose and object of the enactment did not provide for such a broad and all-pervading legislative fiat. This aspect of the matter does not require any further elaboration in the present case for the fundamental reason that claim of the appellants had only been of thika tenancy and when they do not answer to the description of thika tenant, there would arise no question of operation of Section 5 of the Act of 1981, whether in its unamended form or in its amended form.
28.5. Significant it is to notice that even in the Act of 2001, as originally enacted, the definition of thika tenancy in clause (14) of Section 2 thereof retained more or less the same expressions as were there in the Act of 1981; and the expression "any structure including pucca structure" came to be inserted to this clause only by the Amendment Act of 2010. Moreover, the Amendment Act of 2010 was given only prospective effect from 01.11.2010 and not the retrospective 13 effect, as was earlier given to the original Section 4 of the Act of 2001. Thus, acquisition of the land comprising thika tenancy with even erection or acquisition of pucca structure by the thika tenant came to be provided for in specific terms by the legislature only from 01.11.2010 and not before. As noticed, before 01.11.2010, so far as the lease in question was concerned, the same had ceased to subsist and there was no existing lease which could have taken the appellants within the frame of thika tenancy on 01.11.2010."
In the present case, the building situated at the premises is a multi- storied building and thus it cannot be said to Thika tenancy.
In the case reported in 2006 SCC Online Cal 441 (Prakashwati Chopra -vs- Sibaji Mitra), the Hon'ble Division Bench of this Court has decided the following three questions:
"22. We have considered the submissions made by the learned Counsel appearing for the parties. We are of the view that the questions which fall for consideration are:--
(a) "whether the defendant is a tenant within the meaning of the provisions of Section 2(g) of the West Bengal Premises Tenancy Act, 1997?"
(b) Whether application for summary judgment was entertainable? and
(c) "Whether leave should have been granted to defend in the facts and circumstances of the case?"
29. We, therefore, are of the opinion that in those cases where the lease expired by efflux of time but the lessee is continuing in possession he/she would not come within the purview of the definition of a "tenant" under Section 2(g) of the Act of 1997. The judgment in the case of Shyam Charan (supra) does not really lend any assistance in resolving the controversy involved in the present case because the, Act of, 1997 has to be construed in its own background and not in a syllogistical manner as suggested by Mr. Thorat.14
The first point is thus answered in the negative. Once the first question formulated above is answered the principal contention of Mr. Thorat is taken care of, There is thus no question of any bar being applicable to the entertainability of the present suit and this Court was naturally competent to receive, try and determine the suit.
30. The submission of Mr. Thorat that the learned Judge was wrong in proceeding on the basis that the defendant is a trespasser after expiry of the lease is not in our view significant because that is a question of legal status of the defendant/appellant after expiry of the, lease. What was significant is whether the case comes within the purview of Chapter-13A of the Original Side Rules. We already have quoted Rule 1 of Chapter-XIIIA of the Original Side Rules. It would appear that a suit for recovery of immovable property with or without a claim for mesne profit by, a landlord against tenant whose term has expired is specifically provided for. The second question formulated above is thus answered in the affirmative.
33. Mr. thorat is justified in commenting that the probate was obtained sometime in the years 2004-2005 whereas the suit was filed in 2002, Therefore, the suit could have been filed earlier by the executor. There is no gainsaying that the plaintiff could have filed the suit earlier but the fact that the plaintiff did not do so, that alone will not go to show that the plaintiff assented to the continuance of the defendant's tenancy. Court cannot be oblivious of the fact that huge property in the heart of the city let out for Rs. 850/- per month cannot be allowed to be continued by anyone if he can help it. It is, therefore, all the more difficult to infer that the plaintiff assented to the continuance of the possession of the defendant. The requirement of Section 116 of the Transfer of Property Act is actual acceptance of rent or otherwise assent. Therefore, what is required is a bilateral transaction. Unilaterally the defendant/tenant cannot make this to happen nor is sufferance the same as an assent. There has to be meeting of minds on the same point which was not even alleged by the defendant in her affidavit-in-opposition on the basis whereof leave to defend could have been granted. The third question is thus answered in the negative."
In the present case, the defendant has taken three defences i.e (i) the suit is overvalued and this Court is not having jurisdiction, (ii) the property 15 is a Thika Property and (iii) the defendant has already initiated proceeding before the Thika Controller.
As regard the point of overvaluation, the plaintiff has assessed the value of the suit property as per the market rate and not as per the monthly rent stated by the defendant. In the case of M/s Maulavi Abdur Rub Firoze Ahmed & Co. (Supra), the Hon'ble Supreme Court held that in the instant case, the plaintiff asserted in his plaint that the value of the suit premises exceeded Rs.10,000/-. The defendant asserted in its written statement that the suit was "under-valued", it ought to have been valued at the amount of one year's rent. Perhaps the use of the word "under-valued"
is a mistake for the word "over-valued". The statement in the plaint being squarely in accordance with the law and not contrary to it, the High Court was the proper forum for the institution and trial of the suit. The plaint could not be instituted in the City Civil Court. Thus the defence of the defendant is not sustainable.
As regard to the Thika Tenancy, the defendant has filed an application under Section 5 (3) read with Section 9, 10 and 11 of the West Bengal Thika Tenant (Acquisition and Regulation) Act, 2001, the defendant has filed the said application before the Rent Controller, Kolkata Thika Tenancy on 11th October, 2017 i.e. after expiry of the lease period and even after institution of the present suit. The defendant has not filed any documents which would show the said premises are Thika property. The Assessment Book of the Central Record Department of Kolkata Municipal Corporation reveals that the suit property was described as house and shop. The plaintiff and 16 predecessors-in-interest have paid adequate tax in terms of the West Bengal Multistoried Building Tax Act, 1975. In the case of Amala Palit & Ors.
(supra), the Hon'ble Court held that that mere deposit of rent with the Thika Controller cannot ipso facto create a Thika tenancy.
The plaintiff, before expiry of lease period, had issued a notice dated 5th October, 2015 to the defendant calling upon the defendant to vacate the suit premises and to handover possession of the premises to the plaintiff upon completion of the period of 21 years. In the said notice, the plaintiff also informed to the defendant that in default suit for recovery of possession shall be instituted. In spite of receipt of notice and termination of lease, the defendant has not vacated the suit property. It is also found from record that the defendant though had received writ of summons but had not filed written statement.
In view of the above, this Court finds that the defence set up by the defendant is illusory and sham, thus the plaintiff is entitled to get decree in terms of prayer (a) of the Masters Summons.
As regard to prayer (b) of the Masters Summons for mesne profit, an enquiry is required to be conducted. Mr. Suddhastava Banerjee, Learned Advocate is appointed as Special Officer to enquire into the mesne profit and to submit report before this Court.
The remuneration of the Special Officer is fixed Rs. 4,00,000/- (Rupees Four Lakhs only). Initially the plaintiff shall pay the remuneration to the Special Officer and the same be recovered from the defendant. 17 G.A. No. 2 of 2022 is thus disposed of. Decree be drawn accordingly.
(Krishna Rao, J.)