Calcutta High Court
Babulal Satanalika vs Satya Narain Agarwalla And Ors. on 7 March, 1996
Equivalent citations: (1996)1CALLT468(HC)
Author: Basudeva Panigrahi
Bench: Basudeva Panigrahi
JUDGMENT Basudeva Panigrahi, J.
1. This appeal is against the reversing judgment and decree passed by the Sub-ordinate Judge, Asansol in Title Appeal No. 109 of 1966 dismissing the suit filed by the appellant. The appellant (hereinafter referred to as the Plaintiff) filed the suit for ejectment of the respondents/opposite parties (hereinafter referred to as the defendants) from the suit premises, alleging inter alia that the defendants 1 to 4 were the monthly tenants under Md. Mohiuddin Ansari and his brothers at a monthly rental of Rs. 28/- payable according to English Calendar Month. While Mohiuddin and his brothers were in possession of the properties sold the same to the plaintiff for valuable consideration under a strength of a registered deed of conveyance dated 23rd March, 1957. The erstwhile landlords informed the defendants 1 to 4 about such sale transaction and asked to treat the plaintiff as their landlord by a notice dated 6th April, 1957. The defendants had allegedly received the notice on 8th April, 1957. The plaintiff also informed the defendants regarding such sale transaction and claiming to be the landlord of the suit premises by the letter dated 29th March, 1957 which had been acknowledged by the latter on 1st April, 1957. The defendants 1 to 4 with a mischievous intention just to avoid the payment of rent began to deposit rents jointly in the names of the plaintiff as well as the defendant No. 5 under Section 21 of the West Bengal Premises Tenancy Act for which it appears that there was a Misc. Case registered before the Rent Controller, Asansol in Misc. Case 34/57. Since the defendants 1 to 4 began to disclaim the right of the plaintiff their relationship as landlord and tenant from that date onwards was terminated. The plaintiff further claimed that the defendant No. 5 has had no right title, interest and possession over the suit premises and therefore if any rent deposited/paid by the defendants 1 to 4 could not constitute valid payment of rent. Since they defaulted in paying rent from March, 1957, they have forfeited all rights to protection against ejectment from the suit premises who are liable to be evicted from the same. The plaintiff has served valid notice determining the tenancy against defendants 1 to 4 stating that they would vacate the premises within one month from February, 1963 which had been properly acknowledged by defendant Nos. 3 and 4 on 22nd January, 1963 but the defendants 1 to 4 refused to receive the notice which the plaintiff has subsequently received with such endorsement. Even after expiry of the period and on receipt of the registered notice sent by the plaintiff when the defendants 1 to 4 did not vacate the suit premises the plaintiff was obliged to bring the suit for eviction of the defendants on the ground of reasonable requirement, building and re-building and also for default in payment of rent. The defendants 2 to 4 filed a joint written statement while the proforma defendant No. 5 by a separate written statement denied the plaint allegation. The defence set up by the defendants 2 to 4, in short, shows that the plaintiff's vendor Md. Mohiudin Ansari was not the exclusive owner of the suit property which belonged also to his brothers. The defendant No. 5 being the grand daughter of Mohiuddin's brother is also a cosharer of the suit house who is entitled to rent as that of the plaintiff. Therefore the defendants 1 to 4 legitimately deposited the rent before the Rent Controller and for that reason on no count they could be treated as defaulter. Another stand was taken by them that the proforma defendant No. 5 served a notice upon defendants Nos. 2 to 4 demanding the rent in respect of the suit premises and on that account the contesting defendants 2 to 4 had to take steps for depositing the rent before the Rent Controller.
2. The learned Munsif on a careful consideration of the evidence on record, came to hold that the plaintiff had properly served ejectment notice on the defendants. Therefore the notice served against them determining the tenancy was valid. It is further observed that Mohiuddin Ansari had validly granted receipt to defendant Nos. 1 to 4. Mohiuddin the son of Hazi Barta who was the real owner of the suit house and he was not the name lender as claimed by defendant Nos. 1 to 4. The defendant No. 5 has no lawful claim over the suit property. The contesting defendants also did not ever take any steps to tender rent on the plaintiff. Since the defendants had been paying to Mohiuddin Ansari treating him to be their landlord, subsequently they can not be permitted to turn round and set up a joint title in favour of defendant No. 5. There was reasonable necessity for the accommodation of the plaintiff and the learned Trial Court passed judgment and decree in his favour.
3. The appellate Court, on the contrary, indicated that the notice was valid. The plaintiff's vendor Mohiuddin Ansari had no exclusive interest over the suit property vis-a-vis the plaintiff. Since he did not possess the exclusive ownership over the suit property the suit for ejectment at his instance is bound to fail. With these observations the appellate Court reversed the findings of the learned Munsif and consequently dismissed the plaintiff's suit.
4. Mr. Ghosal, learned counsel appearing for the appellant has strongly urged that the learned appellate Court has palpably committed an error in up-setting the findings of the learned Munsif inasmuch as that it did not consider the case of the plaintiff in proper perspective. It was further argued that the plaintiff having proved title to the hilt there was no reason for the appellate Court to hold that he was a joint owner along with defendant No. 5. In course of submission Mr. Ghosal has laid stress on the deed of conveyance through which it was purportedly conveyed to the plaintiff by Mohiuddin Ansari and his two brothers (Ext. 5). No doubt on a reference of this Exhibit it indicates that two other brothers were minors at the time of the sale deed but they never had taken any steps challenging the transaction purported to have been made by the other two brothers. Therefore, the deed of conveyance which was made in favour of the plaintiff unquestionably confers title on the plaintiff. From the case of the appellant it further appears that Mohiuddin had three brothers and all of them sold the properties to the plaintiff under Ext. 5. In that event it can not be argued that the defendant No. 5 had had joint interest over the suit property after the same was conveyed to the plaintiff by her father.
5. From the written statement filed by defendant Nos. 2 to 4 they took a categorical stand that Hazi Bhaktar got the property purchased in the name of Mohiuddin. To substantiate this stand they significantly failed to adduce any credible evidence before the learned Munsif. The sale deed stands in the name of Mohiuddin vide Ext. 5/A. It is the settled position in law that he who sets up a plea of benami must have to establish by cogent, credible and also unimpeachable evidence that the property was purchased in the name of other person benami. In this case the defendants did not take any steps to examine any members of Hazi Bhaktas family to substantiate the document. The appellate Court did not make any discussion that the property was purchased by Hazi Bhaktar in the name of his son Mohiuddin. The learned Trial Court in its judgment has categorically decided that had the defendant No. 5 in any semblance of interest she would not have omitted to appear and depose claiming her interest. Her absence itself will show that she must not have any vestige of claim over the suit properties. This aspect has not either been considered by the appellate Court or any observation has been made to that effect. The notice which has been allegedly sent by defendant No. 5 (Ext. B) was held to be a doubtful character. The Trial Court has discussed the resume of evidence of D. W. 2 which reveals that he was not present when the defendant No. 5 had purportedly to be heard. In the absence of such proof I think the learned Trial Court was very correct in his approach to hold that Ext. B was spurious in character. In the RS record the suit house was recorded in the name of the plaintiff. There is no sufficient material to rebut the presumption arising therefrom. Doubtless the ROR entry raises a presumptive value but the party raising any objection regarding such entry has to adduce proper evidence to rebut the presumption. Therefore, the learned Trial Court has laid emphasis while determining the title on the R.S. record of right (Ext. 12). Though the ROR is not the evidence of title but will corroborate the other piece of evidence while determining the rights of the parties. In the Municipal register also the name of the plaintiff's vendor finds mentioned as an owner. After the transfer the plaintiff's name was mutated as the sole owner. The learned appellate Court without proper consideration of those evidence has held that the plaintiff along with the defendant No. 5 are the joint owners. Therefore, in the above circumstance I hold in disagreement with the findings of the appellate Court that the plaintiff is the exclusive owner which was rightly held by the Trial Court. Albeit in second appeal such question ordinarily should not have been entertained but since the first appellate Court without considering the material piece of evidence has however jumped to the conclusion that the plaintiff has no exclusive title.
6. In sofar as the reasonable requirement by the plaintiff is concerned, the Trial Court has meticulously examined the evidence of PW 2 Luxmi Mukherjee who is an employee of the plaintiff. PW 3 who is the son of the plaintiff also substantially corroborated the evidence of PW 2. The statements of plaintiff Nos. 2 and 3 regarding reasonable requirement appear to be incontrovertible in nature. Thus the learned Trial Court finding no other option than to hold that there was reasonable requirement for the plaintiff, had to decree the suit. The learned appellate Court has also failed to consider the above aspect while upsetting the findings of the Trial Court.
7. Another important fact could not be eluded from view. Ext. A series are the rent receipts filed by the tenant under which they had alleged to have paid to the plaintiff's vendor and his brother. On going through the rent receipts it appears that it is the plaintiff's vendor who had passed receipts to them in token of rent. Once the rents are proved under which the tenant allegedly claimed to have made payment subsequently it is not open to him to deny the title of the landlord and set up ownership in favour of another. Such conduct is hit by the doctrain of estoppel under Section 116 of the Evidence Act. In this connection to butters my finding reliance can be placed on a judgment in the case of Sri Ram Pasricha v. Jagannath and Ors. where it has been held as follows :-
"There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiff's. Such a plea should have been raised, for what it is worth at the earliest opportunity. It was not done. Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such."
8. Regard being had to the facts and circumstances of the case and after going through the contentions of the appellate Court that the plaintiff has proved its title of the suit premises and also there was reasonable requirement for the occupation of the same. In the result, agreeing with the observation of the learned Munsif I vacate the judgment and decree of the appellate Court and decree the suit and accordingly, the appeal is allowed. The plaintiff do get the decree for khas possession by evicting the defendants thereform. The defendants are directed to vacate the suit premises within 90 days from the date of the decree failing which the plaintiff will be at liberty to obtain khas possession of the suit premises through Court. Since the defendant did not contest the appeal I do not want to saddle costs against them. There will be no order as to costs.