Calcutta High Court (Appellete Side)
Uday Shankar Malhotra vs Narinder Singh Ahluwalia on 2 May, 2014
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Arijit Banerjee
F.A. 263 of 2008
Uday Shankar Malhotra.
-Versus-
Narinder Singh Ahluwalia.
For Appellant :- Mr. Kaushik Dey
For the respondent :- Mr. Gautam Misra.
Heard On :- May 2, 2014. Judgment on :- May 2, 2014.
This appeal would relate to a decree for eviction that the learned Judge of the Court below passed upon appreciation of evidence.
The facts would depict, the respondent / decreeholder purchased the premises no.98, Mahatma Gandhi Road from one Trust. After purchase, the respondent filed a suit for eviction as against the appellant, inter alia, on the ground, he trespassed into room no.10 which was under his wrongful occupation. The appellant, in turn, sent a sum of Rs.30 through money order that the respondent did not accept. Needless to mention, the appellant failed to vacate that gave rise to filing of the suit for eviction by the respondent. The appellant contested the suit by filing written statement where he contended, he was in possession since 1974 openly, uninterruptedly and adversely to the owner of the premises, hence the plaintiff would not be entitled to evict him. The parties went to trial. The appellant / defendant changed his stand, he claimed, he was a tenant, since the respondent declined to accept the rent he started depositing rent with the Rent Controller. Earlier he was paying rent to one Bindeswari Mondal, the Darwan of the said premises in question, who was acting on behalf of the erstwhile landlord being the Trust. Pertinent to note, the appellant did not call Bindeswari to support his claim. The so-called receipts were tendered in evidence. Even if we accept those receipts and give full credence to the 2 same, it would at best support his claim paying some money to Bindeswari every month or for the months referred to in those receipts. The authority of Bindeswari to collect rent on behalf of the erstwhile landlord was, however, not proved. The learned Judge rejected the contention and in our view, very rightly.
Appearing for the appellant, Mr. Kaushik Dey, learned counsel, would strenuously contend, the learned Judge of the Court below failed to appreciate the rent receipts and their true spirit and effect. He is, however, unable to satisfy us, how he could run two cases in the same breath that is contrary to each other. The defendant claimed, he trespassed adversely to the landlord, hence it is his onus to discharge by proving the same at the time of trial. He gave up his case made in the written statement.
From the bar and the box, the defendant makes out a new case. He would contend, he was a lawful tenant paying rent regularly to Bindeswari, yet, he does not prove so. Who is Bindeswari ? What relation does he have with the landlord? Did he have the authority to collect rent on behalf of the landlord? Questions remain unanswered. Pertinent to note, the defendant did not call Bindeswari to adduce evidence to support his case.
The learned Judge approached the problem very rightly that would deserve no inteference.
The appeal fails and is hereby dismissed without any order as to costs.
Registry is directed to send down the records to the court concerned, if arrived by this time.
Urgent certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) ( Arijit Banerjee, J. ) ns.