Calcutta High Court
Shivani Properties Private Limited vs Rajeev Lochan on 25 January, 2018
Equivalent citations: AIRONLINE 2018 CAL 648
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
C.S. No.223 of 2013
SHIVANI PROPERTIES PRIVATE LIMITED
... Plaintiff
-Versus-
RAJEEV LOCHAN
... Defendant
BEFORE:
THE HON'BLE JUSTICE SAHIDULLAH MUNSHI
January 25, 2018.
Mr. Ravi Kapoor,
Mr. K. K. Thakar,
Mr. Avinash Kankani
Mr. D. Ghosal,
Mrs. Mudika Khaitan
... for the plaintiff
Mr. Arijit Bardhan,
Mr. Ashish Shah,
Mr. Salman Hasan
... for the defendant
The Court : This is a suit praying for a decree for eviction of
defendant from the suit premises and for khas possession as also for a
decree of mesne profit. The plaint case is as follows :-
One Sumitra Devi Poddar was the tenant in respect of three
separate shop rooms measuring 191 Sq.ft. and 108 Sq.ft. for a
monthly rental of Rs.115/- for each of those two shops and measuring
150 Sq.ft. for a monthly rental of Rs.58/- per month payable according
to English calendar month. The said tenancies have been described in
Schedule 'W', 'X' and 'Y' respectively.
The plaintiff as a private limited company (hereinafter referred to
as the "said company") is the landlord and owner of the suit premises
which was purchased by it under a registered deed of conveyance
dated 24th January, 1994 from one Smt. Dipali Mallik and the said
Dipali Mallik, by three letters dated 24th January, 1994, duly attorned
tenancy in respect of the shops. The said letter was duly received by
Smt. Sumitra Devi Poddar and the same was acknowledged by her.
Sometime in May, 2013, it came to the knowledge of the plaintiff that
the said Sumitra Devi Poddar left the suit premises permanently and
was not enjoying the same in any manner whatsoever. The defendant
was possessing the said three rooms illegally and was liable to be
evicted. There is no legal and/or contractual relationship between the
plaintiff and the defendant. Defendant is in occupation of the suit
premises without consent or approval of the plaintiff and, therefore,
the possession of the defendant is the possession of a trespasser. The
defendant is also not a tenant within the meaning of Section 2(g) of the
West Bengal Premises Tenancy Act, 1997.
Further, the defendant is in illegal occupation of a privy at the
ground floor at the main gate of the said premises which comprised
approximately of 20 sq.ft. which is demarcated in blue in the sketch
plan annexed to the plaint and marked with the letter 'B' and
described in Schedule 'Z'.
The defendant is liable to be evicted from the suit premises and
the plaintiff is entitled to vacant and peaceful possession of the suit
premises described in Schedules 'W', 'X', 'Y' and 'Z' and demarcated in
Annexures 'B' and 'C' respectively.
Since the suit is for recovery of possession of four separate
rooms from the defendant, the plaintiff sought leave under Order II,
Rule 3 of the Code of Civil Procedure for uniting the causes of action in
respect of recovery of the said four rooms described in Schedules 'W',
'X', 'Y', 'Z' to avoid multiplicity of proceedings as according to the
plaintiff, the defendant is in possession of the said four rooms in the
said premises. Such leave was granted under Order II, Rule 3 of the
Code by this Court on 12th July, 2013.
Defendant entered appearance and contested the suit by filing a
written statement which was presented on 20th August, 2013.
However, neither any counter-claim, nor any set off prayed for by the
defendant. It is the defendant's stand that he is not in exclusive
physical possession of the three rooms described in Schedules 'W', 'X',
'Y' appended to the plaint. He said that Sumitra Devi Poddar left for
heavenly abode on 27th May, 2012 leaving behind her daughters Smt.
Rajmani Devi, Smt. Indu Devi and Smt. Usha Devi as her heirs and
legal representatives. The present defendant is the son of Smt. Usha
Devi. According to the defendant, prior to her death Sumitra Devi
Poddar was residing in the room on the terrace of the said premises
with the defendant and his mother. The father of the defendant having
expired, his mother was residing with the deceased Sumitra Devi
Poddar at the time of her death and that she was dependent upon the
deceased. The said Smt. Usha Devi is presently in occupation and in
possession of the aforesaid three rooms. According to the defendant,
plaintiff let out the said privy to the deceased Sumitra Devi Poddar on
an understanding that rent would be payable for the same at the rate
of Rs.115/- per month in cash in the name of the defendant.
According to the defendant, the said agreed monthly rent was paid to
the plaintiff month by month and every month in cash for quite some
time. Defendant was assured ofrent receipts in lieu of such payments
in due course but the plaintiff declined to do so on one pre-text or the
other. In spite of repeated request, plaintiff did not grant rent receipts
and, accordingly, under compelling circumstances, defendant had to
deposit the monthly rent, month by month and every month,
punctually and without fail with the Office of the Rent Controller at
Kolkata. The defendant further stated that Usha Devi had been
ordinarily residing at the portion of the suit property on the top floor
with the said Sumitra Devi Poddar at the time of her death and was
dependent on her. Further, the said Usha Devi does not own and
occupy any other residential premises. The rooms on the ground floor
of the suit premises were being used by the deceased Sumitra Devi
Poddar for non-residential purposes. Owing to the defendant
depositing monthly rent in respect of the privy on the ground floor at
the aforesaid premises with the Office of the Rent Controller, the
plaintiff declined to accept the monthly rent for the three rooms of
which Smt. Sumitra Devi Poddar, since deceased, who was the
monthly tenant and, accordingly, the said monthly rent was being
deposited with the Office of the Rent Controller at Kolkata, month by
month and every month punctually and without fail. According to the
defendant, the suit, as framed, is not maintainable. Question of
eviction does not arise. So also question of paying mesne profit to the
plaintiff does not arise. According to the defendant, there is no cause
of action for this suit and the plaint fails to disclose such cause.
According to the defendant, provisions of West Bengal Premises
Tenancy Act, 1997 would apply to the facts and circumstances of the
instant case and consequently, the protection afforded by the said
Statute would be squarely applicable in the present case.
The following documents have been admitted into evidence,
particulars whereof are given below:-
Plaintiff's Exhibits -
1) Exhibit A - Deed of Conveyance dated 24th January, 1994
between Smt. Dipali (Deepali) Mallik and Shivani Properties
(P) Ltd.
2) Exhibit B (collectively) - Three letters dated 24th January,
1994 by Smt. Dipali Mallik to Smt. Sumitra Devi Poddar.
Signature encircled in red pencil as Exhibit B1, B2, B3
respectively.
3) Exhibit C - Electricity Bill (in original) for the month of
October, 2004.
4) Exhibit D - PD 9 at page no.35 of Judges Brief of Documents
prepared by the defendant.
5) Exhibit E - Letter dated 29th January, 2003 from Shivani
Properties Pvt. Ltd. to Sumitra Devi Poddar.
6) Exhibit F - Extract of the Minutes of the Board of Directors
held on 4th July, 2013 at 11 a.m.
7) Exhibit G - Certified True Copy of Deed of Conveyance dated
26th February, 2010.
Defendant's Exhibits -
1) Exhibit 1 - Death certificate (in original) of Sumitra Devi
issued on 14th June, 2012.
2) Exhibit 2 (Collectively) - (subject to objection) - Copy of letter
issued by Smt. Usha Devi addressed to the Director of
Rationing, West Bengal , Food and Supplies Department,
received by the concerned authority on 28th August, 2012
along with all its annexures.
3) Exhibit 3 (Collectively) - Rent Control challans (six in
number).
After hearing the parties this Court settled the issues by an
order dated 18th November, 2016. The following issues were framed :-
1. Is the suit maintainable in its present form and/or in
law?
2. Is the defendant 'a tenant' within the meaning of
'tenant' as envisaged under the West Bengal Premises
Tenancy Act, 1997, if so, is the defendant entitled to
the protection as available to the tenant under the
provisions of the said Act?
3. Whether the defendant is a trespasser in respect of the
premises particularly mentioned in the Schedule 'W',
'X', 'Y' and 'Z'?
4. Whether the plaintiff is entitled to decree for eviction
and recovery of possession against the defendant in
respect of the suit premises as mentioned in the said
schedule?
5. To what relief or reliefs, if any, the plaintiff is
entitled?
Plaintiff has appeared before this Court and deposed in box in
support of the plaint case. For the sake of convenience Issue No. 1,
that is, "Is the suit maintainable in its present form and/or in
law?" is taken up first. According to the plaint case, the defendant is
the trespasser in respect of the suit premises and it is undisputed that
the defendant resides at the suit premises. He has been served with
the summons at the suit premises. Therefore, if the plaintiff contends
that the defendant is in occupation of the suit premises without any
legal authority of the owner of the premises where he is residing
and/or in occupation, the plaintiff has a cause against the defendant
and such cause arose at the suit premises within the jurisdiction of
this Court. Looking at the valuation of the property, the suit is well
maintainable in the ordinary original civil jurisdiction of this Court
and, therefore, this issue is decided in favour of the plaintiff holding
that the suit is maintainable both in form and also in law. Issue No.1
is, accordingly, decided in favour of the plaintiff.
Issue Nos. 2 and 3 are taken up together for decision. In fact,
Issue No.2 is connected with Issue No.3. If Issue No.2 is answered in
the positive, then there will be no necessity to decide Issue No.3 or the
other way round, that is, if the Issue No.3 is decided, perhaps no
decision on Issue No.2 is required. Let us first consider Issue No.2 -
"Is the defendant 'a tenant' within the meaning of 'tenant' as
envisaged under the West Bengal Premises Tenancy Act, 1997, if
so, is the defendant entitled to the protection as available to the
tenant under the provisions of the said Act?" In order to decide the
issue whether defendant is a tenant in respect of the suit premise or
not, let us first consider the evidence on record. The defendant Rajeev
Lochan appeared to depose in favour of the defence case. In his
deposition he stated that the suit property when purchased by the
plaintiff, Sumitra Devi Poddar was a tenant thereat and she died on
27th May, 2012 leaving behind three daughters, namely, (i) Ms.
Rajmani Devi, (ii) Ms. Usha Devi and (iii) Ms. Indu Devi.
On the question as to who had handed over the death certificate
of Sumitra Devi Poddar to the witness, he replied that the document
was handed over to him by his mother. The document was marked for
identification as the same was not proved. On the question whether
the witness intimated the factum of death of Sumitra Devi Poddar to
any authority, he replied that on 28th August, 2012 his mother
intimated the death of Sumitra Devi Poddar to the Director of
Rationing, West Bengal with its annexures, namely, death certificate of
Sumitra Devi Poddar, medical fitness certificate issued by Dr. Niranjan
Roychowdhury to Usha Devi on 27th July, 2012, a certificate issued by
Councilor of Kolkata Municipal Corporation, Ward No.45, certifying
that Usha Devi was residing at 5, Kiran Shankar Roy Road, Kolkata -
700001 on 26th July, 2012, affidavit affirmed before Notary Public
sworn by Usha Devi on 17th August, 2012, an affidavit before Notary
Public sworn by Rajmani Devi and Indu Devi on 17th August, 2012. He
replied that he got hold of the documents from his mother, Usha Devi.
He deposed that Sumitra Devi Poddar was his maternal grandmother.
From the evidence of the defendant it appears that he has tried to
establish a case that his mother was residing with Sumitra Devi
Poddar on the day of her death. The witness deposed that Sumitra
Devi Poddar used the ground floor and the terrace room for residential
purpose and the witness and his mother were residing with Sumitra
Devi Poddar at the time of her death. He has further deposed that his
mother was dependent on Sumitra Devi Poddar at the time of her
death. Witness deposed that rent receipts in respect of shop room no.2
at the North gate and the room at the terrace of the suit premises were
being issued in the name of Sumitra Devi Poddar. So far the privy is
concerned, witness deposed that there was no rent receipt for using
the said premises but it was an understanding between Sumitra Devi
Poddar and the plaintiff that rent would be paid in cash. The witness
relied upon rent challans issued by Rent Controller to show that Usha
Devi was paying monthly rent of August, 2013 for the shop room no.2.
Another rent challan has been relied to show that Usha Devi is
depositing rent from August, 2013 in respect of shop room on the
ground floor. A rent challan has also been produced to show that Usha
Devi was paying rent for month of August, 2013 in respect of one room
on the roof. Similarly, he has also produced a rent challan to show
that Usha Devi was paying rent for the month of November, 2016 in
respect of shop no.2 at 5, Kiran Shankar Roy Road, Kolkata - 700001.
The witness produced before this Court several rent challans to
show that Usha Devi was paying rent in respect of the suit premises.
These Rent Control challans have been marked Exhibit '3'. The whole
endeavour has been made by the witness is to establish that his
mother was residing with his grandmother and that he was residing
with his mother in the suit premises.
It is the case of the defendant that his father pre-deceased his
maternal grandmother, Sumitra Devi Poddar, the recorded tenant.
According to the defendant, after demise of his father, his mother
Usha Devi Poddar became dependent upon his maternal grandmother
and that his mother became a tenant in view of the provisions of the
West Bengal Premises Tenancy Act, 1997. Admittedly, the maternal
grandmother of the defendant died on 27th May, 2012 and his father
passed away after his said maternal grandmother. Initially, the
defendant avoided to disclose the date of death of his father as borne
out from the oral evidence, but, ultimately, from a protracted cross-
examination, he later on admitted that his father passed away after
his grandmother and in this respect, question nos.78-81, 115 and 160
in cross-examination are relevant.
In regard to present issue is concerned, it is required to take
note of the provisions of Section 2(g) of the West Bengal Premises
Tenancy Act, 1997 which defines 'tenant'. According to the said
provision, 'tenant' means any person by whom or on whose account or
behalf the rent of the premises is or but for a special contract would be
payable. Under the said provision 'tenant' includes any person
continuing in possession even after termination of his tenancy and in
the event of death of such tenant, it also includes his spouse, son,
daughter, parent and widow of his predeceased son, who were
ordinarily residing with the tenant up to the date of death of the
tenants as the members of his family and were dependent on him and
who do not own or occupy any residential premises and in respect of
premises let out for non-residential purpose, his spouse, son,
daughter and parent who were ordinarily living with the tenant up to
the date of his death as members of his family and were dependent on
him or a person authorized by the tenant who is in possession of such
premises. The provision also mentions that it shall not include any
person against whom any decree or order for eviction has been made
by a Court of competent jurisdiction. There are two proviso under the
said sub-section (g). The first proviso says that the time limit of five
years shall not apply to the spouse of the tenant who was ordinarily
living with the tenant up to his death as a member of his family and
was dependent on him and who does not own or occupy any
residential premises.
The second proviso says that the son, daughter, parent or the
widow of the predeceased son of the tenant who were ordinarily
residing with the tenant in the said premises up to the date of death of
the tenant as a member of his family and was dependent on him and
who does not own or occupy any residential premises, shall have a
right of preference for tenancy in a fresh agreement in respect of such
premises.
Therefore, on a plain reading of Section 2, sub-section (g) it
shows that following ingredients are to be satisfied to establish that
the defendant's mother Usha Devi is a tenant in respect of the
premises. Firstly, she has to show she was ordinarily living with the
tenant up to the date of death of the tenant as the member of her
family, secondly, Usha Devi has to show that she was dependent upon
the deceased tenant, thirdly, that she does not own or occupy any
residential premises.
In the cross-examination, when the witness was asked "Am I
correct in saying that the address given here, Jaiprakash,
Rambahadur Ajad Gally, Ward No.17. P.O. & Dist - Khagaria is the
residential address of your two aunts Rajmoni Devi and Indu Devi?"
The witness deposed - 'Yes'. In answer to question no.75 the witness
also deposed that originally, Sumitra Devi resided at 5, Kiran Shankar
Roy Road, Kolkata - 700001, but she also had house in Khagaria and
she actually died in Khagaria. This witness, when asked whether it
would be correct in saying that his father passed away at Flat
103/C/2, Flower Valley Complex, 493/B, G.T. Road, Shibpur, PIN -
711102, he deposed - 'Yes'. The witness also deposed that he was
living with him at the time of his demise. The witness was told in
question no.88 - "You are living with your 3 sisters, your wife, your
child and your mother at Flat 103/C/2, Flower Valley Complex,
493/B, G.T. Road, Shibpur, Pin - 711102, am I correct?" The witness
deposed - 'No'. Then again, he was asked - "Where are you living
presently?" The witness deposed - "I live with my mother and two
unmarried sisters at 5, Kiran Sankar Roy Road."
From the evidence on record it does not appear that after the
death of Sumitra Devi, defendant's mother was residing at the suit
premises or that the said Usha Devi, the mother of the defendant, was
dependent on the deceased tenant, Sumitra Devi, nor has it been
proved that the mother of the defendant ever approached the landlord
that after the demise of her mother tenancy devolved on her and she
should be recorded as tenant in respect of any of the suit premises.
In the cross-examination, when the witness was asked whether
he produced any evidence in this proceeding to show that his mother
tendered rent to the plaintiff before depositing with the Rent Control,
the witness deposed "money order had been sent to the plaintiff." In
the next question, when he was asked "Have you disclosed any such
alleged money order which you sent to the plaintiff?" The witness
deposed - "I cannot remember but I have the receipt with me."
The witness claims to be an independent tenant in respect of the
privy in question but that can also not be substantiated by the
evidence on record.
From the above-referred discussion, it does not appear that the
defendant has been able to prove that his mother can qualify the
requisites of a tenant within the meaning of Section 2(g) of the West
Bengal Premises Tenancy Act, 1997 meaning thereby to say that she
was ordinarily residing with the tenant Sumitra Devi up to her date of
death as a member of her family or that his mother was dependent on
the deceased tenant or that she had no other residential premises.
Exhibit '1' is the death certificate of Smt. Sumitra Devi. Exhibit '1'
disclosed the address of Sumitra Devi as Khagaria, Bihar. The mother
of the defendant, Usha Devi, does not appear to have been living with
Sumitra Devi ordinarily up to the date of death of Sumitra Devi as the
member of her family who was residing with her husband, that is, the
father of the defendant. On the contrary, the defendant has admitted
that his maternal grandmother was dependent upon his mother. The
dependency as mentioned in the said provision of Section 2(g) should
be construed to be a financial dependency and within of the four
corners of the evidence adduced by the defendant, it does not appear
that there is any such financial dependency of the mother of the
defendant, Usha Devi, had on the grandmother of the defendant,
Sumitra Devi Poddar, the deceased tenant. In fact, question no.59 is
important to quote where the question was "Why didn't your mother
use to reside with your father at Dhanbad?" The witness deposed
"Because my grandmother used to live alone and she used to fall sick."
In question no.60, the witness was asked "I take it that it is your
evidence that to look after your grandmother your mother used to
reside with your grandmother at 5, K.S. Roy Road, Kolkata?" The
witness deposed - 'Yes'.
Summary from the said deposition comes out that firstly, the
mother of the defendant was not ordinarily residing with his
grandmother which is a pre-requisite for claiming to be a tenant
within the meaning of Section 2(g), secondly, her stay, if at all, with
the deceased tenant, has been justified to be to look after the deceased
tenant during her illness at the suit premises. Lastly, the evidence of
the defendant has falsified his statement in paragraph 7 of his written
statement that - "The said Usha Devi does not own and occupy any
other residential premises" for the sole reason that in question nos.83,
167 and 168, in his cross-examination, the defendant admitted that
his mother inherited a share in his father's estate and that his father
was residing at 493/B, G.T. Road, South Howrah, before his death
and he further deposed that his father and he were joint owners in
respect of the said premises.
By the written statement and the evidence led by the defendant
it is sought to be established that defendant was not in exclusive
possession of the suit premises save and except the privy at the main
gate of the premises in question of which he was the tenant and his
mother Smt. Usha Devi was in possession of the suit premises. It is
the further case of the defendant that Sumitra Devi Poddar left for
heavenly abode on 27th May, 2012, leaving behind three daughters,
namely, Smt. Rajmani Devi, Smt. Indu Devi and Smt. Usha Devi as
her heirs and legal representatives surviving her and further that Smt.
Usha Devi was ordinarily living with the said Smt. Sumitra Devi
Poddar at the time of her death as a member of the family of the
deceased and further that the said Usha Devi was fully dependent on
the said Sumitra Devi not owning or occupying any residential
premises. Therefore, the defendant claims that the said Usha Devi
inherited the tenancy of Smt. Sumitra Devi Poddar in respect of three
rooms at the said premises and was, therefore, in occupation of the
suit premises save and except the privy of which the defendant alone
was the tenant. Therefore, on an analysis of the evidence on record it
is apparent that the defendant has failed to prove the ingredients to be
declared as a tenant within the meaning of Section 2(g) of the West
Bengal Premises Tenancy Act, 1997.
Learned Advocate for the plaintiff has relied upon the following
Judgments in the case of -
• Prasun Chakraborty - Vs. - Smt. Indira Jaiswal,
reported in (2016) 4 Cal LT 420.
• Vimal Chand Ghevarchand Jain & Ors. - Vs. -
Ramakant Eknath Jadoo, reported in (2009) 5 SCC
713.
• Iswar Bhai C. Patel alias Bachu Bhai Patel - Vs. -
Harihar Behera & Anr., reported in (1999) 3 SCC
457.
In Prasun Chakraborty (supra) the plaintiff seeks to show that
it is necessary for him to institute a suit against the mother of the
defendant inasmuch as according to the plaintiff, the defendant was in
possession of the suit premises. Paragraphs, 16, 17, 18, 19 and 20 of
the said judgment are relevant for the present case wherein a Division
Bench of this Hon'ble Court held that since the sons of the deceased
tenant could not establish that they were financially dependent upon
their father or that they were maintained by their father during the
lifetime of their father, the said sons of the tenant could not inherit the
tenancy in question from their father so also in this case in order to
come to a finding that Usha Devi became a tenant by ordinarily
residing, as alleged, she had to prove that she was also financially
dependent upon her mother, Sumitra Devi Poddar, who was a tenant
of the suit premises. Therefore, ratio of this judgment supports the
argument advanced by Mr. Kapoor in the present case that Usha Devi
was never a tenant in respect of any portion of the suit premises.
The next decision in the case of Vimal Chand (supra) has been
relied on by the plaintiff in order to submit that the best available
evidence should be brought before the Court and if such step is not
taken by the party, adverse inference may be drawn against him. In
the present case, defendant claims that Usha Devi inherited the
tenancy of the mother; defendant claims that Usha Devi ordinarily
used to reside with her mother at the time of her death; defendant
claims that Usha Devi was financially dependent upon the said tenant,
Sumitra Devi Poddar. But no cogent evidence has been led by the
defendant to establish such contention. In this context, it was
submitted by the plaintiff that Usha Devi is the best person to say
before the Court as to what was the real incident but the defendant,
although, claimed that he has got cordial relationship with his mother,
has not brought the said witness before this Court. When it is on
record that the said Usha Devi never took any steps after her mother's
demise to get the tenancy changed in her name either orally or in
writing, it is difficult to rely on the oral evidence of the defendant that
Usha Devi was residing with Sumitra Devi Poddar at the suit
premises. Following the said view of the Hon'ble Supreme Court, this
Court also holds that adverse presumption under Section 114(g) of the
Indian Evidence Act should be drawn and this goes against the
defendant.
The next decision cited by Mr. Kapoor is in the case of Iswar
Bhai C. Patel (supra). This is also on the issue of adverse
presumption. Relying on the ratio in the said judgment it has been
contended by Mr. Kapoor appearing for the plaintiff that although, it is
the specific case of the plaintiff that defendant is a trespasser in the
suit premises and after death of Sumitra Devi Poddar, the original
plaintiff, possession of defendant in the suit premises cannot be held
to be legal and, although, the defendant has pleaded that his mother
was residing with the original tenant and thus, inherited the tenancy,
no endeavour was made by the defendant to bring his mother to
depose on the box that whatever the defendant pleaded in his written
statement with regard to the inheritance of his mother, the tenancy of
his grandmother is correct. In absence of such endeavour on the part
of the defendant it is but to hold that the defendant has deliberately
withheld the best available witness in support of his case and in such
circumstances, there is no other alternative but to hold that the
defendant is a trespasser in the suit premises and has miserably failed
to prove that his mother was the tenant.
Contention raised by the defendant that he was not in exclusive
possession of the suit property and, therefore, the suit is not
maintainable for eviction of a trespasser, can also not be accepted.
Exhibits 'C' and 'D' are the electricity bills issued by the Calcutta
Electricity Supply Corporation in respect of the suit premises and it
stands in the name of the defendant. Writ of summons was served
upon the defendant personally at the suit premises. This is another
evidence to show that the defendant is in occupation of the suit
premises. Those apart, record reveals that the defendant described his
address in the written statement to be of 5, Kiran Shankar Roy Road.
Therefore, this voluntary statement of the defendant cannot be
overlooked. It cannot be accepted that he is not residing at premises at
5, Kiran Shankar Roy Road. However, this does not prove that he is in
exclusive possession of the said premises. Evidence on record shows
that he is in exclusive possession of the suit premises, and that his
mother was not residing there. Neither any documentary evidence has
been placed before this Court to show that his mother Smt. Usha Devi
was residing with Sumitra Devi Poddar ordinarily during her lifetime
and up to her death, nor any oral evidence has been led in that regard.
No further evidence has been led to prove that even after death Smt.
Usha Devi was in occupation of the suit premises. At least Usha Devi
would have been called as a witness to prove on DOC that she was
residing in the suit premises after or before the death of the original
tenant Sumitra Devi Poddar. It is the defendant who knows best why
such an important witness has not been brought before the Court to
clarify the position. This act of the defendant obviously will go against
him for withholding of the best evidence from the Court. It is also not
on record that Usha Devi ever made any attempt to approach the
landlord to change the rent receipt in her name on the plea that she
has inherited the tenancy after the death of her mother. No
correspondence was made with the landlord to show that even she
was entitled to stay at the suit premises as a tenant. Although, the
defendant claims that the tenancy was a non-residential one and as a
result whereof, the limited period of five years as mentioned in Section
2(g) of the aforesaid Act does not apply in this case for the defendant's
mother but that has also not been sought to be proved by any means.
No evidence has been led on behalf of the defendant to show that the
premises was a non-residential premises. Therefore, from the above
discussion it is clear that the defendant cannot claim to be a tenant,
nor can it be claimed that his mother Usha Devi inherited the tenancy
of Sumitra Devi Poddar. Therefore, this issue is, accordingly, decided
in favour of the plaintiff.
The defendant, however, relied on a decision in the case of
Ashrukana Pal - Vs. - Sabita Ghosh Sarkar & Anr., reported in 2016
SCC Online Cal 10503 wherein it has been held -
"Section 2(g) of the Act has dealt with the tenancy for
residential purposes and tenancy for non-residential purposes
separately. The time limit for a period not exceeding five years is
not applicable to non-residential tenancies."
Such decision has no applicability in the present case inasmuch
as no effort has been made by the defendant to prove that the tenancy
was a non-residential tenancy granted in favour of Sumitra Devi
Poddar and further that when the defendant has failed to prove the
ingredients of Section 2(g), question of applicability of five years has no
role in the present case. The decision relied on by the defendant in
Nand Kishore Marwah & Ors. - Vs. - Samundri Devi, reported in
(1987) 4 SCC 382 agitating that the Hon'ble Supreme Court has held
- "It is settled law that rights of the parties will be determined on the
basis of the rights available to them on the date of the suit..." This
proposition has also got no manner of application in the present case.
The defendant contended that on the date of the filing of the suit even
five years had not lapsed, therefore, during the pendency of the suit
those rights to continue with the property was extended and he cannot
be termed to be a trespasser in the premises in question. This
submission of the defendant is self-contradictory. On the one hand he
says that limit of five years is not applicable in respect of a non-
residential premises, on the other hand, he contends that his mother's
possession in the suit premises cannot be held to be illegal. Since her
right to possess the property continues even during the pendency of
the suit taking it to be five years from the date of death of Smt.
Sumitra Devi Poddar who died on 27th May, 2012 whereas, the suit
was filed in the month of July, 2013. This judgment has also no
application in the present case in view of the defendant's own
contention that the limit of five years is not applicable for a non-
residential tenant. It is a case where the defendant has come forward
and deposed that his father was also residing at 5, Kiran Shankar Roy
Road, Kolkata - 700001, prior to purchase a flat at Flower Valley
Complex in Howrah as evident from Exhibit 'G' which is a certified
true copy of the Deed of Conveyance by which a flat was purchased by
the father of the defendant at the aforesaid Flower Valley Complex in
Howrah. The defendant's mother used to reside with the defendant's
grandmother as a member of family, is not evident from the evidence
on record, rather, the natural presumption is that a wife is supposed
to live with the husband while the husband is the owner of a flat and if
no contrary is proved that the defendant's mother ordinarily resided
with his grandmother at the suit premises, there is no reason to hold
that the mother of the defendant became a tenant within the meaning
of Section 2(g) of the aforesaid Act. It is the duty of the defendant to
prove that she became tenant after satisfying the ingredients of
Section 2(g) of the said Act. It is not the law that automatically a
person becomes a tenant on the death of the original tenant. There are
certain instance which are required to be brought on record by leading
cogent evidence in respect thereof and so long that is absent, Court is
under no obligation to hold that such tenancy devolved upon the
mother of the defendant. Apart from the devolution of tenancy of
Sumitra Devi Poddar upon her daughter Usha Devi, it is not evident
from the evidence that she at all resided in the suit premises after
death of the tenant Sumitra Devi Poddar. The defendant has
completely failed to discharge the burden of proof that his mother is a
tenant in respect of the suit premises in compliance of the
requirement under Section 101 of the Indian Evidence Act, 1872 and
no independent evidence has been led by the defendant in this regard,
rather, the oral evidence of the defendant is contrary to some extent
and in places the deposition appears to this Court to be unworthy of
credit because of his diverse stand.
It has been contended by the defendant that the plaintiff cannot
derive any advantage from the discrepancies in the pleadings and the
evidence of the defendant having failed to prove its own case and to
substantiate such plea reliance has been placed by him on a decision
in the case of A.C. Bhattacharjee - Vs. - Arun Krishna Roy & Ors.,
reported in 65 CWN 1175. Although, no reliance is necessary to be
placed on this decision because the same cannot be the argument on
behalf of the defendant at all inasmuch as the plaintiff has been found
to have proved its case independent of the pleadings and evidence on
record adduced by the defendant. Therefore, this decision also has got
no application in the facts and circumstances of this case.
On behalf of the defendant it has been further submitted that in
the event two interpretations are possible in respect of provision of a
particular Statute, the interpretation of the Statute favouring the
tenant should be adopted. Learned Counsel appearing for the
defendant has placed reliance first on the decision of Prasanta Kumar
De Chowdhury & Ors. - Vs. - Tapas Kumar Das, reported in AIR
1981 Cal 332. Learned Counsel has drawn attention of this Court to a
portion of paragraph 8 of the said decision which says -
"The West Bengal Premises Tenancy Act is not a general statute
but a special statute enacted for the benefit or protection of the tenant
and as such construction of this statute is to be made in such a way
that it goes in favour of the tenant."
The proposition, as sought to be pointed out by the learned
Counsel for the defendant, is not in dispute but the question which
falls for consideration in this case is, whether is there any ambiguity
as regards the genuineness of the claim of the defendant that his
mother became a tenant automatically after the death of his
grandmother, Sumitra Devi Poddar. In order to establish his argument
that two interpretations are possible in a case particularly when the
word 'dependent' has not been defined in the Statute, he has drawn
the attention of another decision in the case of Shri Gobind Dass &
Ors. - Vs. - Shri Kuldip Singh, reported in AIR 1971 Del 151.
Drawing analogy to the provisions of Section 2(g) of the West Bengal
Premises Tenancy Act, 1997 with that of the proviso under Section 14
of the Delhi Rent Control Act, 1958, the learned Counsel for the
defendant submitted that when 'dependent' is not defined in the Act
then a liberal meaning of the said word 'dependent' shall be construed
in the ordinary sense of the word. He has drawn attention of this
Court to a portion of paragraph 10 of the said judgment which says -
"...One cannot shut one's eyes to this structure of our society and
so to give a restricted meaning to the word "dependant" would be to
provide a definition of this word where the legislature has advisedly
chosen not to do so. We would, therefore, in the circumstances of this
case hold that the wives of the brothers of Gobind Dass and their
children were dependent on Gobind Dass for accommodation specially
when it has not been brought on record that the family members owned
any other residential premises..."
The decision has been relied on by the defendant is in the
context of Section 14 of the Delhi Rent Control Act, 1958 which may
be set out as follows :-
"14. Protection of tenant against eviction.- (1)
Notwithstanding anything to the contrary contained in any other law or
contract, no order or decree for the recovery of possession of any
premises shall be made by and court or Controller in favour of the
landlord against a tenant: Provided that the Controller may, on an
application made to him in the prescribed manner, make an order for
the recovery of possession of the premises on one or more of the
following grounds only, namely:-
(a) ...
(b) ...
(c) ...
(d) ...
(e) That the premises let for residential purpose are required bona
fide by the landlord for occupation as a residence for himself or
for any member of his family dependent on him, if he is the
owner thereof , or for any person for whose benefit the
premises are held and the landlord or such person has no other
reasonably suitable residential accommodation."
The above-mentioned decision has been cited by the learned
Counsel for the defendant to draw the attention of this Hon'ble Court
with regard to the word 'dependent' but the 'dependent' used in the
context in the cited judgment cannot be equated with that of the
'dependent' mentioned in Section 2(g) of the West Bengal Premises
Tenancy Act, 1997. That apart, wives of the brothers of Gobind Dass
and their children mentioned in the cited decision, were dependent on
Gobind Dass for accommodation specially when it has not been
brought on record that the family members owned any other
residential premises. In the present case, which we are dealing, the
person who claims to be dependent on her mother, the original tenant,
is the wife of another gentleman who had been living elsewhere as
apparent from the evidence adduced by the defendant himself and it is
also apparent that the husband of the defendant's mother died after
the death of the original tenant. In such an event, the logical
conclusion cannot be drawn that the mother of the defendant would
possibly have been ordinarily residing with her mother who had a
separate residential premises elsewhere and further that the deceased
tenant Sumitra Devi Poddar died not in the suit premise but at
Khagadia, Bihar, as would be borne out from Exhibit 1. Therefore, the
arguments advanced by the learned Counsel for the defendant relying
on the said two decisions are not at all acceptable.
I have already pointed out earlier that Issue Nos. 2 and 3 are
interlinked with each other. It was also pointed out that once Issue
Nos. 2 is decided, the same will have direct bearing upon the Issue
No.3. In this case, I have already decided that the defendant is not a
tenant in the suit premises. Now, it is to be decided as to whether the
defendant has any authority under the law to occupy the suit
premises. It has been submitted by the defendant that he is not in
exclusive possession of the suit premises as mentioned in Schedule of
the plaint. He is only in exclusive possession of the privy in the ground
floor and it is his case that his mother was a tenant in respect of other
three premises under the suit. In support of the defendant's plea that
he is a tenant in respect of the privy, no documentary proof has been
placed before this Court, only it is the oral evidence of the defendant
that he was allowed to occupy the said premises and there was an
understanding that rent bill would be issued in his favour in respect of
the said privy but, ultimately, nothing could be produced to prove that
the defendant has acquired tenancy in respect of the said privy or that
he is the tenant thereof. Therefore, in absence of any definite proof
that the defendant has been legally occupying the said privy, the Court
has no other option but to come to a finding that the defendant is a
trespasser of the said premises inasmuch as it is the case of the
defendant that his mother is in possession of the suit premises other
than the privy in question and while the defendant is not in a position
to establish that his mother inherited the tenancy, occupation of the
defendant in the premises in respect of other portions other than the
privy also becomes illegal and he, therefore, becomes a trespasser in
the entire lot, that is, the premises 'X', 'Y', 'Z' mentioned in the
Schedule appended to the plaint. That being the position, the plaintiff
has a cause of action for filing this suit to evict the trespasser
defendant from the suit premises. Therefore, Issue No.3 is also
decided in favour of the plaintiff.
Issue Nos. 4 and 5 are taken up together for the sake of
convenience. It is necessary to decide whether the plaintiff is entitled
to decree for eviction and recovery of possession against the defendant
in respect of the suit premises and whether the plaintiff is entitled to
any other reliefs apart from those claimed in the plaint. As against the
plea of the defendant that on the death of Sumitra Devi Poddar, Usha
Devi, her daughter, was residing ordinarily with the said deceased
tenant Sumitra Devi Poddar and became the tenant by virtue of the
provisions of Section 2(g) of the West Bengal Premises Tenancy Act,
1997 and tried to make out a case that the tenancy was of commercial
use and, therefore, bar of five years as mentioned in Section 2(g) is not
applicable for Usha Devi, who claimed to have been ordinarily residing
with the deceased tenant Sumitra Devi Poddar. The defendant claimed
that Usha Devi became tenant and she being in possession as a tenant
and the defendant being not in exclusive possession of the entire suit
premises, cannot be treated to be a trespasser. However, it is the claim
of the defendant that his mother Usha Devi became the tenant in
respect of the tenancy held by Sumitra Devi Poddar and because the
property was used as commercial property, the said Usha Devi, the
mother of the defendant, became the tenant in absence of Sumitra
Devi Poddar. Endeavour was made on behalf of the plaintiff to show
that the shop rooms where deceased Sumitra Devi Poddar was
running a ration shop, could not be used any further as such,
inasmuch as the licence to operate as such, does not exist. In absence
of any licence which was issued to Sumitra Devi Poddar, subsequent
to the death of the said tenant, defendant cannot use the said shop
rooms for any other purpose as the same would tantamount to
"change of user" which would render the mother of the defendant
liable for eviction. Such a contention has been disputed by the
defendant saying that it is well settled that if a particular premises has
been let out for "non-residential" purpose or for "purpose of trade",
mere change in the nature of trade carried therefrom, would not
and/or cannot tantamount to a change of user of the nature, so that
the tenant is liable to be evicted therefrom in terms of the provisions
engrafted in the Rent Control legislation. On this submission, the
defendant has placed reliance on a judicial pronouncement in the case
of Hari Rao - Vs. - N. Govindachari & Ors., reported in (2005) 7 SCC
643. In the cited case, the respondent-landlord leased out a room for
the purpose of a shoe trade or trade in leather goods by the tenant. There was a prior proceeding in which there was a compromise and the building was re-let to the tenant after it was remodeled or reconstructed. While carrying on his business, the tenant had used a part of the premises for carrying on a trade in readymade garments and that amounted to a user of the building by the tenant for a purpose other than that for which it was let out, within the meaning of Section 10 (2) (ii) (b) of the Act which governed the tenancy in question. The tenant had also fixed name-boards outside and drilled two holes in the walls for fixing racks for the purpose of his trade and had taken an independent three phase electricity connection and for that purpose he had made the holes on the floor and on the wall. It was contended that those acts of the tenant amounted to commission or causing the commission of such acts of waste as would likely to impair materially, the value or utility of the building within the meaning of aforesaid Section 10 (2) (iii) of the Act. Accordingly, the landlord filed a suit for eviction of the tenant/appellant before the Hon'ble Supreme Court on the said grounds. Tenant took the defence that original letting was not for the purpose of trade of shoes or leather goods alone, but he was still carrying on the business of selling shoes and had expanded his trade by including readymade garments. There was no user of the room by him for the purpose other than the purpose for which it was let out. Therefore, he was not liable to be evicted on that ground. He contended that the fixing of the sign- boards was permitted by the landlord and fixing of the boards or the fixing of the racks for the purpose of the trade did not amount to acts of waste as are likely to impair materially the value and utility of the building. On an interpretation of the term "trading shoes and other leather goods" while creating the tenancy the Hon'ble Apex Court held
- "Merely because a shop let out for trade in shoes and other leather goods, is used by the tenant also for the purpose of trading in readymade garments, it could not be held to be a user by the tenant of the premises for a purpose other than that for which it was leased."
The Hon'ble Apex Court further noted that even at the time when the proceedings were pending, the tenant was carrying on the business of trading in shoes which, according to the landlord, was the purpose for which the building was let out and that the trade in shoes was not stopped by the tenant. All that happened was that the tenant had also diversified into selling some readymade garments or T-shirts, the manufacture of which even some of the manufacturers of shoes had taken up. Relying on the evidence, the High Court passed an order of eviction under Section 10 ((2) (ii) (b) of the aforesaid Act which has been set aside by the Hon'ble Apex Court holding, inter alia, that -
"the Rent Control Legislation is enacted in the larger interest of the society as a whole and it is not intended to confer any disproportionately larger benefit on the tenant to the disadvantage of the landlord. But that does not mean that the Rent Control Legislation should not be approached as a beneficial piece of legislation and with the recognition that reasonable protection to the tenant is one of the objects of that legislation."
While interpreting the provision of law with regard to change of user and the consequences thereof, the Hon'ble Apex Court held that -
"one must see whether there has been such a change of user of the premises as to make it alien to the purpose for which the building was let and deny eviction when the basic activity remains the same and there is only a variation in the manner or mode of carrying on of that activity." The purpose for which the premises was let out, has mentioned in the said decision and the business which is in effect, was being carried by the tenant, are inter-related. Therefore, the Hon'ble Apex Court held that it would not amount to change of user. But in the present case, such plea cannot be adopted inasmuch as the premises was being used by Sumitra Devi Poddar for a particular purpose for which licence from Statutory Authorities was required and obtained but after her death and in absence of such licence, the defendant cannot contend that even if such premises is being used other than the purpose for which it was let out, does not tantamount to change of user, is unacceptable. Therefore, the said decision has no bearing in the present case.
In answering the Issue Nos. 4 and 5 it is held that the defendant is a trespasser in the suit premises and he is liable to be evicted therefrom. Consequently, the plaintiff is entitled to a decree for recovery of possession in respect of the suit premises as mentioned in the Schedule. The plaintiff is also entitled to a mesne profit which cannot be readily assessed and for the purpose, this Court appoints Ms. Anjusree Mukherjee, Advocate, Bar Association and Mr. Soumyajit Ghosh, Advocate, Bar Library Club, jointly as Special Referees to determine the mesne profit for the defendant's occupation over the suit premises since the date of filing of the suit till the date of the delivery of possession by the defendant on the basis of prevailing market rate. The Special Referees will be entitled to a remuneration for Rs.35,000/- (Rupees Thirty Five Thousand) only, each to be borne by the decree-holder alone at the first instance. The parties will render all possible assistance to the Special Referees to complete the quantification of mesne profits. The decree-holder shall also bear the costs and expenses of the Special Referees in conducting the reference.
So far the claim of interest is concerned, the decree-holder will be entitled to an interest @ 9% per annum over the total amount of mesne profit.
As I have held that Usha Devi is not the tenant, purported deposit of rent in the Rent Control Office is held to be invalid tender of rent and she will be free to take the same back. Her such deposit has not created any equity in her favour.
Suit is, accordingly, decreed. The plaintiff is entitled to costs for the suit which is assessed at Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) only, payable forthwith by the defendant.
Department is directed to draw up and complete the decree as expeditiously as possible.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
(Sahidullah Munshi, J.)