Calcutta High Court
Radha Prosad Sharma vs Sm. Bejoy Sett on 16 February, 1996
Equivalent citations: (1996)2CALLT52(HC)
Author: Basudeva Panigrahi
Bench: Tarun Chatterjee, Basudeva Panigrahi
JUDGMENT Basudeva Panigrahi, J.
1. This appeal arises from the Judgment and Decree dated 7th March, 1984 and 15th March, 1984 respectively in T.S. 1460 of 1977 in the Court of 9th Bench, City Civil Court, Calcutta directing eviction against the appellant from the suit premises.
2. The respondent-plaintiff (hereinafter referred to as plaintiff) filed the suit for eviction of the appellant (hereinafter referred as defendant) from the suit premises. The plaintiff claims to be an absolute owner of the premises No. 106/1A, S.N.Banerjee Road, P.S. Taltola, Calcutta which consisted of the main building and also a tin shed in front of it. In addition to the building and tin-shed, there are other eight rooms, bath and privy in the back portion thereof. She lived in the suit house after the death of her husband long since. Her only son was living in hostel studying medicine in the R.G.Kar Medical College. The defendant gained confidence of the plaintiff since he was introduced by the latter's father and the defendant agreed to perform drudgery house-hold duties and also acting as a guard in the suit house. On the request of the defendant the plaintiff inducted him as a monthly tenant in respect of the out house. But the defendant betrayed the confidence and neither paid the rent in respect of the house nor vacated the premises, as a result of which the plaintiff was obliged to bring an ejectment suit No. 1242 of 1965 followed by the decree of eviction. She put the decree in execution and took delivery of possession thereof. The plaintiff executed a deed of gift to her son giving him the back portion of the suit house which has been separately numbered as 106/1 which stood in his name of her son and the front portion is numbered as 106/1 -A where she is shown as the owner.
3. After the eviction decree the defendant was rendered homeless and entreated the plaintiff for allowing him to stay for few months on the landing space of the staircase. On human approach she allowed him to continue for sometime and thus, he stayed in the staircase for two years and again reposed trust in the plaintiff which led her to agree to part with the tin-shed of the ground floor on leave and licence. Accordingly, the defendant came to possess the tin-shed as a licensee under the plaintiff in or about 1968. But 2 or 3 years after when the defendant started a new business-adventure in the suit premises fixing some machineries, the plaintiff objected against such high handedness and issued a registered notice through the advocate revoking the licence.
4. The licence is revocable at the will of the grantor. But the licensee should be informed about such revocation requiring him to vacate the licensed premises. In such connection it is held in a Supreme Court decision , in the case of Mrs. M.N. Clubwala and Ors. v. Fida Hussain Saheb and Ors. :
"Although a licence is revocable at the will of the grantor the provisionin the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a licence. The mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction as a lease".
Even after the notice the defendant having failed and neglected to vacate the tin-shed she filed a suit for eviction against him.
5. The maid plea of the defendant is that he never occupied the house on leave and licence but acquired tenancy right on the suit premises. After acquiring such right he constructed a brick wall and C.I. Roof shed at his own cost long before 1968 at a rental of Rs. 1/- per diem but when the plaintiff demanded Rs. 3/- per diem which he declined to oblige the same. She mlschiviously filed a suit for eviction against him. It is further claimed by the defendant that because of mutual trust and confidence he never demanded a receipt from the plaintiff who taking advantage of the absence of the receipt filed the present suit.
6. Both the parties were led to trial and the Trial Court after giving its anxious thought passed eviction decree against the defendant.
7. Mr. Roy Chowdhury, learned counsel strenuously urged that in this case, the plaintiff having significantly failed to prove that the suit premises was given on leave and licence to the defendant and there being no alternative plea taken by her, the Court should have observed that the defendant acquired the right of tenancy.
8. While considering the rights of a tenant the documents on which such right was created carries paramount weight. In the absence of such document the conduct of the parties and surrounding circumstances should be looked into.
9. Mr. Roy Chowdhury took an inexorable that on reading of the plaint allegation in para 1 to 3 before amendment and those after amendment will inevitably create impression that she takes different plea at different point of time. Therefore, we went carefully through the pleading prior to amendment and afterwards but we found there has been no substantial change in the aforesaid allegations except the plaintiff by way of further elucidation sought amendment to make the pleadings more explicit and lucid. It is well known that the courts do exist to advance the cause of justice and not to hinder it and the justice must not be a handmaid to technicalities. Therefore, while deciding the rights of the parties the Court should bear in mind about the preponderance of probabilities. While there are some minor variations and if those are not affecting the merits of the case such variations can be safely ignored.
10. From the text of the deposition of the plaintiff it seems that she allowed the defendant on leave and licence after the order of eviction in ejectment suit No. 1242/65 on latter's request. Gradually trust and confidence gained ground in the mind of the plaintiff and she allowed the defendant to occupy the tin-shed. The learned counsel Mr. Roy Chowdhury strongly urged that when there was litigation between the parties following a decree of eviction how could the plaintiff allowed defendant to occupy a tin-shed without formally executing some document. From the pleading it appears that he was not given any room at the beginning but simply allowed to occupy the grounding space on the ground floor near the staircase. But incourse of time when the plaintiff started trusting defendant, she allowed him to occupy the tin-shed. Therefore, in such premises it is quite probable that she must have allowed the defendant to occupy the suit premises as a licensee after enjoy confidence in him.
11. Another formidable point is against the defendant that he was served with a registered notice about the cancellation of licence and requiring him to surrender the vacant possession to the plaintiff. Had the defendant been a thicka tenant he could have replied to the notice. Therefore, the conduct of the defendant goes a long way to prove that he was never a thicka tenant of the suit land.
12. A lease deed of the year of 1962, ext. 7 has been filed by the plaintiff in respect of another tin-shed abutting the suit premises. On a careful reading of the lease deed it reveals that there was such house prior to 1962. Therefore, the stand of the defendant that he constructed a tin-shed on the suit premises can easily be spurned. The defendant, thus, signally failed to establish by any document that he constructed a tin-shed over the suit land after meeting requisite expenditure.
13. The learned counsel for the appellant further pleaded that the plaintiff could not prove that the defendant was allowed to occupy the house on leave or licence. No. doubt, such argument added piquancy to the contest, but, on a careful cogitation of his contention we find such plea is devoid of merit. In a case of ejectment the fundamental questions arise whether (i) the plaintiff is owner of the suit premises (ii) whether the defendant was a tenant (iii) or he was permitted to occupy on leave and licence (iv) or he forcibly occupied the same. In this case, it has already been held that the defendant was inducted as a licensee of the suit house.
14. At the worst it can be said that he was allowed to occupy the same on permission. Since the lower court has believed that the defendant had occupied the house as a licensee by placing reliance on the evidence of the plaintiff and from her deposition we do not find adequate reason to reach at a different conclusion. Therefore, in the above premises we are constrained to hold that the defendant as permitted by the plaintiff to occupy the house as a licensee. In this connection, we may place reliance in the case of Bhagwati Prasad v. Chandramaul, :
"If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle, a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be.founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case, what the Court has to consider in dealing with such an objection is did the parties know that the matter on question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce consideration of prejudice, and in doing justice to one party, the Court cannot do injustice to another.
In a suit for ejectment the defendant admitted the title of the plaintiff in regard to the plot and pleaded that he was to remain in possession of the house until the amount spent by him in its construction was returned by the plaintiff. The plaintiff led evidence the tenancy set up by him and the defendant led evidence about the agreement on which he relied. Both the pleas were clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission. In such a case the relationship between the parties would be either of a landlord and tenant, or that of an owner of property and a person put into possession of it by the owner's licence." No other alternative was logically or legitimately possible.
Held that in absence of proof tenancy and of defendants agreement the conclusion of the High Court in first appeal that the defendant was in possession of the suit premises by the leave and licence of the plaintiff, did not cause prejudice to defendant. There was no error of law if the decree for ejectment was passed.
15. In this case, there is no dispute with regard to the ownership of the plaintiff. The learned counsel contended with strong intensity of conviction that the plaintiff has significantly failed to seek a prayer for declaration of right over the suit house. Therefore, such question of ownership remains outside the pale of the dispute. The plaintiff has prayed in her suit for recovery of possession which incidentally involved the question of ownership. Unless she is found to be the owner of disputed premises, she cannot be allowed to take possession of the suit house. In this case the defendant did not specifically take the plea that the plaintiff was never the owner. On the other hand, he claimed Thika tenancy in respect of the suit premises under the plaintiff which he indirectly admitted her to be the owner of the suit land. Corporation receipts show that the premises No. 106/1-A stands in the name of the plaintiff. In view of absence of specific denial of plaintiffs ownership and the municipal payment of tax by the plaintiff, we may safely hold that she has the right, title and interest over the suit property. Accordingly, we do not find any merit in the contention of the appellant. Considering the case of the appellant from all angle we hold that the Trial Court's judgment did not suffer from any infirmity.
16. Mr. Bhattacharyya, appearing on behalf of the appellant submits that the appellant has deposited certain amount every month in the office of the Rent Controller, Calcutta. Since the appeal has already been dismissed and it has been found that the appellant was not the tenant but a licencee, he is entitled to withdraw the amount already deposited by him in the name of the respondent from the office of the Rent Controller, Calcutta, from the date of dis-possession. Accordingly, the Rent Controller, Calcutta is directed to permit the appellant, to withdraw such amount already deposited by the appellant, if not already withdrawn in the meantime, within a month from date.
In the result, the appeal fails and the judgment and decree passed in Title Suit No. 1460 of 1977 are hereby affirmed with cost.
There will be no order as to costs.
T. Chatterjee, J.
17. I agree