Calcutta High Court (Appellete Side)
Badrul Alam @ Bulu vs Sayed Samsul Alam & Ors on 13 September, 2018
Author: Arijit Banerjee
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Chief Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Arijit Banerjee
S.A.T. 1 of 2018
with
CAN 1388 of 2018
Badrul Alam @ Bulu
-versus-
Sayed Samsul Alam & Ors.
For the Appellant : Mr. Partha Pratim Roy,
Mr. Dyutiman Banerjee.
For the Respondents : Mr. Srijib Banerjee.
Heard On : 13th September, 2018.
Judgement On : 13th September, 2018
Jyotirmay Bhattacharya, C.J.
This second appeal is directed against the judgment and decree dated 22nd August, 2017 passed by the learned Judge, Senior Division, Kandi, Murshidabad, in Title Appeal No. 72 of 2013 affirming the judgment and decree dated 20th June, 2013 passed by the learned Civil Judge, Junior Division, 1st Court at Kandi, Murshidabad, in Other Suit No. 28 of 2010 at the instance of the defendant/appellant.
Let us now consider as to whether any substantial question of law is involved in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
The plaintiffs filed a suit for eviction against the defendant upon service of notice under Section 106 of the Transfer of Property Act thereby determining the relationship of landlord and tenant between the parties.
Since the defendant did not vacate the suit premises after expiry of the notice period, the instant suit for eviction was filed. The defendant appeared in the said suit and contested the same by filing written statement denying the existence of relationship of landlord and tenant between the parties. The defendant alleged that the suit property is a Wakf property. The defendant further alleged that by virtue of the purchase of the suit property by the plaintiffs from Khandekar Ali Jafar, the plaintiffs did not acquire any title in the suit property. The defendant, however, admitted in the written statement that the defendant paid rent of Rs.1200/- to the plaintiff no. 2 who accepted the said rent on behalf of all the plaintiffs. The defendant, thus, claimed that since the relationship of landlord and tenant between the parties did not exist, the plaintiffs are not entitled to get any decree for eviction in the suit. He, thus, prayed for dismissal of the suit.
The learned Trial Judge was pleased to decree the said suit on contest by holding that the relationship of landlord and tenant exists between the parties. Such conclusion was drawn by the learned Trial Judge by relying upon Section 116 of the Evidence Act. The learned Trial Judge held that notice under Section 106 of the Transfer of Property Act was duly served. Accordingly, the eviction notice is valid and legal. As such, the learned Trial Judge decreed the said suit on contest.
Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendant preferred an appeal before the learned First Appellate Court. Learned First Appellate Court held that the defendant failed to prove his claim that the suit property was a Wakf property. Considering 'Exhibit - 1', the learned First Appellate Court held that there was nothing on record to show that Khandekar Ali Jafar & Ors., ever dedicated the said property to Wakf. Considering the deed of transfer being 'Exhibit - 3' the learned First Appellate Court held that by virtue of purchase of the suit property by the plaintiffs from the said Khandekar Ali Jafar, the plaintiffs became the owner of the suit property. The learned First Appellate Court, further held that even though the relationship of landlord and tenant between the parties is not established, still then, the plaintiffs are entitled to get a decree for eviction as the plaintiffs succeeded in proving their title in the suit property and the defendant has failed to prove a better title than the plaintiffs in the suit property. Holding as such, the learned First Appellate Court maintained the decree of eviction passed by the learned Trial Court. Challenging the said judgment and decree passed by the learned First Appellate Court, the instant appeal has been preferred by the defendant.
We have heard the learned counsel for the parties and we have considered the materials on record, including the judgment and decree impugned in this appeal.
On perusal of the record we find that the defendant has failed to produce any evidence to show that the suit property is a Wakf property. The rent receipt which was produced by the defendant being 'Exhibit-B' shows that Khandekar Ali Jafar is the owner of the suit property. The plaintiffs have purchased the suit property from the said Khandekar Ali Jafar, vide 'Exhibit - 3'. The defendant has also admitted in his written statement that he paid rent to the plaintiff no. 2 who accepted the rent on behalf of the plaintiffs. Thus, considering the rent receipt being Exhibit -B which was produced by the defendant, as well as Exhibit-3 being the title deed of the plaintiffs, coupled with the admission made by the defendant in his written statement about payment of rent to one of the plaintiffs, this Court has no hesitation to hold that the relationship of landlord and tenant between the parties is established. We also do not find any illegality in the notice under Section 106 of the Transfer of Property Act which was served by the plaintiffs upon the defendant.
We, thus, do not find involvement of any substantial question of law in this appeal. We thus decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
The appeal thus stands dismissed.
Since the appeal is dismissed, no further order need be passed on the application filed in connection with this appeal. The said application is deemed to be disposed of.
(Jyotirmay Bhattacharya, C.J.) (Arijit Banerjee, J.) ac