Calcutta High Court (Appellete Side)
Shri Rajen Subba vs Smt. Padma Kumari Rai & Ors on 26 July, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE 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. 231 of 2016
(CAN 5801 of 2016)
Shri Rajen Subba
-Versus-
Smt. Padma Kumari Rai & Ors.
For the Defendant/ : Mr. Satyajit Talukdar.
Appellant
Heard on: 26th July, 2016.
Judgement on: 26th July, 2016.
Jyotirmay Bhattacharya, J. :-
This second appeal is directed against the judgement and decree dated 6th May, 2016
passed by the Learned District Judge, Darjeeling in O.C. Appeal No. 09 of 2014 affirming the
judgement and decree dated 21st June, 2014 passed by the Learned Civil Judge (Senior Division),
Darjeeling in O.C. Suit No. 15 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
appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of
the Code of Civil Procedure, or not.
The plaintiffs/respondents filed a suit for eviction against the defendant/appellant by
determining the relationship of landlord and tenant between the parties by service of notice under Section 106 of the Transfer of Property Act. Since the defendant/appellant did not vacate the suit premises within the notice period, the plaintiffs filed a suit for eviction against the said defendant.
The defendant appeared in the said suit and contested the same by filing written statement denying material allegations made out by the plaintiffs in the plaint. The parties led evidence in support of their respective claim in the said suit.
The defendant/appellant contended that his tenancy is governed by the West Bengal Premises Tenancy Act. He thus, contended that the present suit is not maintainable as the same was filed without complying with the mandatory requirement under the said Act. He further contended that the plaintiffs are not the owners of the suit property. As such, they cannot pray for a decree for eviction on the ground of reasonable requirement. He thus, prayed for dismissal of the suit.
The learned Trial Court after considering the pleadings of the parties and their evidence held that since the suit property lies beyond the territorial jurisdiction of the municipality, the West Bengal Premises Tenancy Act does not apply. Admittedly, the suit property lies within the Cantonment area.
The learned Trial Judge thus, held that the tenancy of the defendant/tenant is governed by the Transfer of Property Act. The learned Trial Judge also held that the plaintiffs succeeded in proving their ownership in the suit property.
The learned Trial Judge also held that the plaintiffs have also succeeded in proving that the relationship of the landlord and tenant between the parties has been duly determined by service of a valid, legal notice under Section 106 of the Transfer of Property Act upon the defendant. The learned Trial Judge thus, held that since the tenancy of the defendant is governed by the Transfer of Property Act, the plaintiffs/respondents are not required to prove any ground of eviction as contemplated under the West Bengal Premises Tenancy Act.
Being aggrieved by and dissatisfied with the said judgement and decree passed by the Learned Trial Judge, the defendant/appellant preferred an appeal before the learned First Appellate Court.
The learned First Appellate Court was pleased to dismiss the said appeal by affirming the judgement and decree of the learned Trial Court. The learned First Appellate Court held that service of notice upon the defendant was not specifically challenged by the defendant in the written statement. It was also recorded by the learned First Appellate Court in the impugned order that the defendant frankly admitted before the learned First Appellate Court that such notice was served upon the defendant. The defendant/appellant however, challenged the legality and/or validity of such notice.
The learned First Appellate Court after considering the materials on record came to the conclusion that such notice was duly served upon the defendant and the said notice is good, valid and sufficient.
The learned First Appellate Court thus, dismissed the said appeal. The instant second appeal is directed against the said judgement and decree of the learned First Appellate Court.
After hearing Mr. Talukdar, learned advocate appearing for the appellant and after considering the materials on record including the order impugned, we do not find any apparent illegality in the judgements and decrees in the courts below.
We are of the view that since the suit property is admittedly situated within the Cantonment area i.e. beyond the municipal limits of Darjeeling Municipality the West Bengal Premises Tenancy Act has no application in the area where the suit premises is situated. The tenancy of the defendant is governed by the Transfer of Property Act.
Since both the courts below have concurrently held that such tenancy of the defendant was duly terminated by service of notice under Section 106 of the Transfer of Property Act and the said notice is good, legal, valid and sufficient, we sitting in this jurisdiction, do not find any justifiable reason to upset such findings of fact arrived at by both the courts below on the basis of the materials on record.
In these set of facts, we feel that no substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
Accordingly, we decline to admit this appeal.
The appeal is, thus, dismissed.
Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application.
The application for stay being CAN 5801 of 2016 is thus, deemed to be disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) dp