Calcutta High Court (Appellete Side)
Narayan Chandra Dey vs Dipali Rana & Ors on 22 November, 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. 234 of 2016
(CAN 7580 of 2016)
Narayan Chandra Dey
-versus-
Dipali Rana & Ors.
For Appellant : Mr. Shyamal Chakraborty,
Mr. Bhusan Jain.
For the Respondents : Mr. Uttam Kumar De,
Ms. Daisy Rani Podder.
Heard On : 22nd November, 2016.
Judgement On : 22nd November, 2016.
Jyotirmay Bhattacharya, J.
This Second Appeal is directed against the judgment and decree dated 4th February, 2016 passed by the learned Judge, 8th Bench, City Civil Court at Calcutta, in Title Appeal No. 28 of 2009 affirming the judgement and decree dated 23rd March, 2009 passed by the learned Judge, 5th Bench, Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 1649 of 2000 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.
Suit for eviction filed by the plaintiffs/respondents against the defendant/appellant on the ground of reasonable requirement was decreed by the learned Trial Court.
The learned First Appellate Court also affirmed the said judgment and decree passed by the learned Trial Court. Hence this appeal.
Mr. Chakraborty, learned advocate, appearing for the appellant submits that the relationship of landlord and tenant does not exist between the plaintiffs/respondent nos. 2 & 3 and the defendant/appellant. According to him, the suit property originally belonged to the father of the plaintiff nos. 2 & 3. He executed a deed of settlement in the form of trust, appointing himself and his wife as trustees. It is provided in the deed of settlement that on the death of the settler, the wife of the settler will become the trustee. The plaintiff nos. 2 & 3 being the sons of the original settler are the beneficiaries under the trust.
The instant suit was filed by the wife of the settler alongwith her sons who are also joined as plaintiff nos. 2 & 3. It is also provided in the deed of settlement that the trust will come to an end on the death of the wife of the settler and the ownership of the said property will devolve upon the plaintiff nos. 2 & 3 absolutely.
Mr. Chakraborty, learned advocate, appearing for the appellant submits that since the trustee is still alive, she is the landlady of the defendant/appellant. He, thus, contends that the plaintiff nos. 2 & 3 cannot claim themselves to be the landlord so long as their mother is alive.
In this context, Mr. Chakraborty submits that the suit is not properly framed. According to him since the plaintiff nos. 2 & 3 with whom there is no relationship between the parties as that of landlord and tenant, have been joined in the suit, the suit based on contract should be held to be not maintainable, as in a suit based on contract, parties who are foreigners to the contract cannot be joined as parties. Thus, he challenged the maintainability of the suit not only on the ground of misjoinder of parties but also on the ground of defective framing of the suit. .
In this regard we have considered the pleadings of the respective parties. In paragraph 3 of the plaint, the plaintiff stated that all the plaintiffs are landlords of the defendant in respect of the suit premises. The defendant in his written statement accepted such contention of the plaintiffs. He has not disputed the existence of relationship of landlord and tenant between the plaintiff nos. 2 & 3 and himself.
Since the defendant/appellant has admitted the existence of his relationship with all the plaintiffs, we hold that the defendant/appellant cannot raise the issue regarding maintainability of the suit for joining the plaintiff nos. 2 & 3 as parties in this suit. Thus, we do not find any defect in the framing of the suit. Again we like to mention here that a suit cannot fail for misjoinder of parties under Order 1 Rule 10 of the Civil Procedure Code.
Accordingly, we do not find any substance in such contention of Mr. Chakraborty.
Mr. Chakraborty submits that the instant suit for eviction was filed on the ground of reasonable requirement under the West Bengal Premises Tenancy Act, 1956. Mr. Chakraborty contends that in such a suit, the plaintiffs were required to prove that the plaintiffs are not only the landlords of the defendant, but the plaintiffs are owners of the suit property. According to him, the plaintiffs have failed to prove their ownership in the suit property.
Let us now consider as to how far the plaintiffs succeeded in proving their ownership in respect of the suit property.
We have already mentioned above that admittedly the father of the plaintiff nos. 2 & 3 was the owner of the suit property. The said owner of the suit property executed a deed of settlement in the form of trust. Under the said deed of settlement, he himself was appointed as a trustee alongwith his wife, the plaintiff no. 1.
In view of the Trust Act, the ownership of the settler vests upon the trustees. As such, both the settler and his wife being the trustees under the said deed of settlement became the owners of the suit property and on the death of the settler/trustee, the plaintiff no. 1, being the sole trustee, will be regarded as the owner of the property until the trust comes to an end.
As such, the ownership of the plaintiff no. 1 cannot be disputed.
Having regard to the fact that the trust deed also provides that on the death of the last surviving trustee, the plaintiff nos. 2 & 3 being the sons of the settlers will become the absolute owners of the said property, the ownership of the suit property has not yet devolved upon the plaintiff nos. 2 & 3 as the sole surviving trustee is still alive. However, since the plaintiff no. 1 is the owner of the suit property and the plaintiff nos. 2 & 3 are the prospective owners of the suit property, we hold that the landlord are the owners of the said property and the suit cannot fail on the ground that the plaintiffs are unable to prove their ownership in the suit property.
As such, the contention which is so raised by Mr. Chakraborty does not appeal to us for being considered as a substantial question of law, in this Second Appeal.
Mr. Chakraborty lastly contended that during the pendency of this appeal, the landlords have made some additional construction in the suit premises. Thus, according to him some additional accommodation was made available to the landlord during the pendency of this appeal. Mr. Chakraborty, further, submits that for bringing on record the exact accommodation which was available to the landlord during the pendency of the appeal, the appellant filed an application under Order 41 Rule 27 of the Code of Civil Procedure. A local inspection was also held by an Advocate Commissioner and a report was submitted by him. Mr. Chakraborty submits that while disposing of the First Appeal, the learned First Appellate Court did not consider the report of the Commissioner and as such, the appellant was deprived of getting the ultimate views of the learned First Appellate Court being the ultimate court of facts on this issue.
Though it is true that local inspection was held by the Advocate Commissioner, but Mr. Chakraborty informs this Court to the Court's query that the said report of the Commissioner was not marked as exhibit in the appeal.
No step was taken by the appellant to examine the Commissioner for proving the said report. Even the report was not tendered into evidence for marking it as exhibit in the suit/appeal.
Under such circumstances, we are of the view that the learned First Appellate Court had no obligation to consider such report which was not finally proved and/or admitted into evidence as per law.
Considering the existing accommodation available to the plaintiff to the suit premises and the size of the family and their requirement, we are of the view that the plaintiffs reasonably require the suit premises for the occupation of the plaintiffs, including the beneficiaries under the trust.
As such, we hold that no substantial question of law is involved in this appeal.
Accordingly, we do not find any reason to admit this appeal. The appeal, thus, stands dismissed. Consequently, the application filed in connection with this appeal is also dismissed.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) ac