Calcutta High Court (Appellete Side)
Sri Ranjit Sarkar vs Smt. Malati Ghosh on 23 June, 2009
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Present:
The Hon'ble Justice Jyotirmay Bhattacharya C. O. No. 3200 of 2008 Sri Ranjit Sarkar
-Vs-
Smt. Malati Ghosh For the Petitioner : Mr. Mahendra Prasad Gupta, Mr. Ayanabha Raha.
For the Opposite : Mr. Sabyasachi Bhattacharya, Party. Mr. Amit Chowdhury. Judgment On : 23-06-2009.
This application under Article 227 of the Constitution of India is directed against an order being no.34 dated 21st August, 2008 passed by the learned Additional civil Judge (Junior Division), Sealdah in Ejectment Suit No.399 of 2005 whereby the defendant's application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 was disposed of by holding inter alia that the defendant is a defaulter in payment of rent for the period from 1st November, 1986 to 1st August, 2008 i.e. for 261 months at the rate of Rs.40/- per month. The defendant was, thus, directed to deposit the entire arrear rent for the said period at the said rate together with 10% interest thereon to the credit of the petitioner within one month from the date of the order.
The defendant is aggrieved by the said order as the dispute which the defendant raised in the said application as to existence of relationship of landlord and tenant between the parties was decided against the defendant. Though the learned Trial Judge held that relationship of landlord and tenant exists between the parties but at the same time, the learned trial Judge made it clear that such findings are tentative findings and the said dispute was kept open for conclusive adjudication at the time of final hearing of the suit.
Being aggrieved by the said order, the instant application has been moved by the defendant/petitioner herein.
Heard Mr. Gupta, learned Advocate appearing for the petitioner and Mr. Bhattacharya, learned Advocate appearing for the opposite party. Considered the materials-on-record including the order impugned.
Let me now consider the merit of this revisional application in the facts of the instant case. Admittedly, the defendant/petitioner was a tenant under one Smt. Mrinalini Dasi, since deceased, who was a thika tenant in respect of the suit premises. There was a dispute with regard to the rate of rent payable by the defendant and the period of default. The petitioner claimed that Rs.40/- was the rate of rent payable by him to his landlord in respect of the said premises. Plaintiff, however, claimed that the rate of rent is Rs.100/- per month. The defendant claimed that he paid rent to Mrinalini Dasi upto Jaistha 13 93 B.S., but he could not produce any rent receipt for any month subsequent to Bhadra 13 93 B.S. (23rd September, 1986).
Admittedly, Mrinalini Dasi died on 25th October, 1986. The plaintiff/opposite party is claiming title in the suit property by virtue of a will dated 25th January, 1986 by which Mrinalini Dasi bequeathed the suit property in favour of the petitioner. The said will was duly probated by the learned District Delegate, Sealdah on 21st February, 2004. Thereafter notice of attornment was served upon the defendant and rent was demanded from him. The defendant replied to the said notice but refused to pay the rent to him unless he is able to prove his title in the suit property.
In fact, the defendant also claimed title in the said property by virtue of the unprobated will allegedly executed by the said Mrinali Dasi on 10th July, 1986. The defendant also made an alternative claim for acquisition of title by adverse possession, though he did not deny his occupation as tenant in the said suit premises under the said Mrinalini Dasi during her lifetime.
In the aforesaid set of facts the learned Trial Judge held that since the relationship of landlord and tenant between Mrinalini Dasi and the petitioner herein is not disputed and further since the defendant has failed to prove his title in the suit property either by virtue of the said purported will which still remains unprobated or by virtue of adverse possession, no other conclusion can be arrived at excepting that there exists relationship of landlord and tenant between the parties as the plaintiff has proved his title in the suit property by virtue of the aforesaid probated will and has also proved that he had served notice of attornment of his tenancy in favour of the plaintiff upon the defendant.
On perusal of the impugned order, this Court does not find any illegality and/or material irregularity therein.
Since the defendant's said application was not decided along with the issue regarding the existence of relationship of landlord and tenant between the parties, it is rightly held by the learned Trial Judge that the findings arrived at in the impugned order relating to the said dispute are not conclusive and the said issue will be decided finally and conclusively at the time of hearing of the suit after taking evidence of the parties.
Mr. Gupta, however, tried to impress upon this Court by submitting that Thika Tenancy right is not transferable in view of the provision contained in Section 6(3) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 which provides that the interest of Thika tenants and tenants of other land holding directly under the State under sub Section 1 of Section 6 shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-sharers' interest or to the prospective heirs subject to provision of sub section 1 of Section 7.
Mr. Gupta further submitted that this restriction on transfer is not only imposed upon the transfer inter vivos contemplated under the Transfer of Property Act but it extends to testamentary succession by will also and as such, such transfer though operates posthumously but nevertheless such transfer amounts to assignment which come into effect only after the death of the testator. In support of such submission Mr. Gupta relied upon a decision of the Hon'ble Supreme Court in the case of Sangappa Kalyanappa Bangi (dead) -Vs- Land Tribunal, Jamkhandi & Ors. reported in AIR 1998 SC 3229 which no doubt says that the devise under a will amounts to assignment and therefore is not valid under Section 21 of the Karnataka Land Reforms Act which prohibits subdivision or subletting of land held by a tenant or assignment of any interest thereunder. The Hon'ble Supreme Court came to the said conclusion by considering the purpose for which the said Section was introduced. According to the Hon'ble Supreme Court, the said provision was introduced for creating a restriction on allowing strangers to the family of the tenant to come upon the land.
The said principle, in my view, is not applicable in the facts of the instant case as transfer inter se amongst the heirs, existing co-sharers interest or to the prospective heirs, is not prohibited under Section 6(3) of the said Act.
Here is the case where it is alleged by the plaintiff that the thika tenancy right was bequeathed by the said Mrinalini Dasi (thika tenant) by her will dated 25th January, 1986 in favour of the plaintiff who is the widow of her sister's son. Admittedly Mrinalini was issueless and her husband predeceased her and as such the plaintiff may be a prospective heir of the testatrix as per the Hindu Succession Act and if that be so, the transfer by will even if it amounts to assignment still then, is not hit by the restriction on transfer under Section 6(3) of the said Act.
In this context, a reference may also be made to another decision of the Hon'ble Supreme Court in the case of S. Rathinam -Vs- L.S. Mariappan reported in (2007)6 SCC 724 wherein it was held that a testator by will may make any disposition of the property subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. It was held therein that a will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing and it is not a transfer but a mode of devolution. Thus, if the said decision is taken into consideration then it helps the plaintiff to support his contention that such testamentary succession does not amount to transfer and if that be so then the title in the property devolved upon the plaintiff in terms of the testamentary intentions of the testatrix, as her heir and in that event it cannot be held that devolution of such interest upon plaintiff by way of testamentary succession contravenes the provision of Section 6(3) of the said Act.
In view of the aforesaid discussion, this Court holds that the other decision which was cited by Mr. Gupta i.e. in the case of Mohammad Hamid -Vs- Rosan Miyan reported in 2004(1) CLJ (Cal) 219 has no application in the facts of the instant case.
Mr. Gupta cited another decision of this Hon'ble Court in the case of Mrs. Qaiser Jahan - Vs- Mohammad Yawoob reported in 1992(2) CLJ 143 in support of his submission that whenever there will be statutory loss of title on account of vesting of landlord's interest in the State, the landlord's right to sue abates by virtue of section 5 of the said Act and under such circumstances State should be added as party defendant in the eviction suit filed against the tenant.
In my view the said decision has no application in the facts of the instant case as it is a case where none of the parties claim that thika tenancy right of Mrinalini vested in the State. If the thika tenancy right of Mrinalini has not been vested in the state then right of the plaintiff remained unaffected and his right to sue also remains unaffected.
In fact, both the plaintiff and the defendants are claiming title through Mrinalini and as such, nobody can deny the title and/or interest of Mrinalini in the said land.
Since I have already held that the plaintiff has proved his title by virtue of the will left by Mrinalini, this Court also has no other alternative but to agree with the finding of the learned Trial Judge regarding the dispute relating to the existence of relationship of landlord and tenant between the parties.
Before concluding, this Court wants to keep it on record that this Court does not feel it necessary to consider the contention of Mr. Gupta regarding maintainability of instant suit before the Civil Court seriously as the said point was neither raised by the petitioner before the learned Trial Judge nor the same was decided by the learned Trial Judge. Though it is rightly pointed out by Mr. Gupta that Section 8 of the West Bengal Thika Tenancy Act provides for trial of such suit by the Controller, appointed under the said Act, but, in view of the repealing and saving clause contained in Section 27 of the said Act which in my prima facie view does not create any bar in maintaining the instant suit before the Civil Court as the plaintiff's right to evict the defendant has arisen under the Act of 1981 due to default committed by the defendant in paying rent during the time when 1981 was in operation.
It is, however, made clear that if such an issue is ultimately raised in the suit, the same will be decided by the learned Trial Judge on its own merit, without being influenced by the observations made hereinabove.
This Court, thus, does not find any merit in this revisional application. The revisional application, thus, stands rejected. However, the time for depositing the arrear rent upto the current month of June, 2009 together with the interest at the statutory rate thereon as per the impugned order, is extended till 31st August, 2009.
The revisional application is, thus, disposed of.
Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.
( Jyotirmay Bhattacharya, J. )