Calcutta High Court
Sri Satyendra Nath Roy (Deceased) ... vs Smt. Chhabi Rani Mundra on 17 July, 1996
Equivalent citations: (1996)2CALLT467(HC)
JUDGMENT Arun Kumar Dutta, J.
1. This second Appeal is directed against the Judgment and Decree dated 29th March, 1993 passed by the learned Assistant District Judge Sealdah in Title Appeal No. 170 of 1989 before him, affirming the agreement and Decree dated 31st July, 1989 passed by the learned Munsif, Additional Court at Sealdah, in Title Suit No. 132 of 1986 before him on a grounds made out in the Memorandum of Appeal.
2. The relevant Suit was filed by the Plaintiff-Respondent Chhabi Rani Mundra for eviction of the Defendant-Appellant, Satyendra Nath Roy, since deceased, who has been substituted by his legal heirs and representatives on his demise during the pendency of this Appeal, from the suit premises, as described and detailed in the Schedule to the Plaint, on ground of reasonable requirement, amongst others. It is contended by the Plaintiff-Respondent (hereinafter referred to as Plaintiff) that she became the owner of the suit premises under a Deed of Settlement dated 8th October, 1958 executed by her grand mother Niva Rani Devi (hereinafter referred to as Niva Rani) on her death on 22nd December, 1978. By a letter of Attornment to the Defendant-Appellant (hereinafter referred to as Defandant), she (Plaintiff) had requested him to pay rent to her in respect of the suit premises where he was a tenant under the said Niva Rani. The Plaintiff is stated to be residing in a tenanted accommodation with her family at 5/1, Dum Dum Road, Calcutta-30, which is insufficient to meet her requirement. Hence the relevant suit for recovery of possession of the Suit premises after evicting the Defendant therefrom on the ground of reasonable requirement on the plea taken in the Plaint, after determining the tenancy of the defendant by a Notice to quit dated 14-4-1983, duly served and received by him on 19-4-1983.
3. The Trial Court, on trial, had found favour with the Plaintiffs case and had decreed the Suit. Being aggrieved thereby, the defendant had preferred the First Appeal before the Lower Appellate Court, which as well had affirmed the Judgment and Decree passed by the Trial Court for the reasons recorded in the impugned Judgment and Order dated 29th March, * 1993.
4. Being aggrieved by the aforesaid by the Judgment and Decree rendered by the Lower Appellate Court, the Defendant has preferred the instant Second Appeal before this Court on the grounds made out in the Memorandum of Appeal.
5. During the hearing of this Appeal before this Court the moot point urged by the learned Advocate for the Defendant-Appellant is that the Suit being one for his eviction from the Suit premises on the ground of reasonable requirement, amongst other grounds, the Plaintiff-Respondent would be obliged to prove that she is the owner of the suit premises in terms Section 13(l)(ff) of the West Bengal Premises Tenancy Act. But she having failed to prove according to law that she is the owner of the suit premises, the Suit is liable to be dismissed. The Courts below had, accordingly, erred in decreeing the Suit, as they did.
6. Let me now consider whether, there was any error of law on the part of the Court's below in decreeing the Suit, they did, on the finding that the Plaintiff is the owner of the suit premises.
7. On my careful scrutiny and cavalier consideration of the materials/ evidence on record I am clearly of the view that there has been no such error on the part of the Courts below in decreeing the Suit on the finding that the Plaintiff is the owner of the Suit premises for much the same reasonably discussed in their Judgments and for the reasons I shall presently discuss.
8. The Plaintiff appears to have stated with more than usual clarity and conviction in paragraph-1 of the Plaint that she became the absolute owner of the Suit premises by virtue of the Deed of Settlement dated 8-10-1958 executed by Niva Rani Devi since after the demise of the Settlor Niva Rani with effect from 22-12-1978 as per terms embodied in the said Deed. While traversing the contents of Paragraph-1 of the Plaint in paragraph 7 of the Written Statement, the Defendant does not appear to have specifically denied the Plaintiffs plea that she had become the absolute owner of the suit premises in the manner stated in paragraph- 1 of the Plaint; and has merely stated that the Statement made in Paragraph-1 of the Plaint is a matter on record and he (Defendant) does not admit anything which is beyond record and which is subject to strict proof thereof. In the absence of any specific denial in the Written Statement despite the positive plea taken by the Plaintiff in Paragraph- 1 of the Plaint that she had become the absolute owner of the Suit premises, the Defendant must be deemed to have admitted that the Plaintiff is the owner of the Suit premises, as pleaded by her, on the application of the principles of doctrine of Non-Traverse.
9. Apart from the pleadings indicated above, the Plaintiff in her evidence before the Trial Court on 17-6-88 as the P.W.I had clearly and emphatically stated that she became the owner of Lot-B (the premises in Suit) by virtue of the aforesaid Deed of Settlement after Nivanan's death. She had also mutated her name with the Corporation. Her aforesaid evidence on oath has neither been controverted by the Defendant by way of cross-examination. There is neither the merest and faintest suggestion on behalf of the Defendant to the P.W.I during her cross-examination that she is not the owner of the Suit premises, as stated by her in her examination-in-chief. The only suggestion put to the P.W. 1 on behalf of the Defendant during her cross-examination on 8-8-88 is that Niva Rani Devi was not the owner of the Suit premises, which, however, was strongly repudiated by the plaintiff (P.W. 1). The Defendant in his evidence as the D.W.2 before the Trial Court on 10/7/89 did neither state that the Plaintiff is not the owner of the Suit premises.
10. Under the law, facts not in dispute need not be proved. The Defendant not having denied in his writing Statement or in his evidence before the Court that the plaintiff is the owner of the Stilt premises, as pleaded by her in the plaint and as stated by her during her evidence on oath before the Court, the question of proof by the plaintiff that she is the owner of the Suit premises could not clearly arise as such. And, on my scanning the evidence of the Defendant before the Trial Court I find that he, per contra, appears to have indirectly admitted that the plaintiff is the owner of the Suit premises. The Defendant in his evidence before the Court as the D.W.2 on 10-7-89 had clearly stated that Niva Devi had inducted him as a tenant in respect of the Suit premises, and that he does not know whether she is owner of the suit property. If he does not know whether Niva Rani was the owner of the Suit property or not, he is clearly incompetent to dispute that she was the owner thereof, though sadly sought to be disputed by him. In his examination-in-chief the Defendant had further clearly stated that he does not "know whether the plaintiff has any house save and except the house in tenancy", clearly meaning the premises in Suit. By his aforesaid statement he clearly appears to have indirectly admitted that the premises in Suit belongs to the plaintiff. It would not, therefore, lie in the mouth of the Defendant to now contend that the plaintiff is not the owner of the Suit premises.
11. That apart, it had not been disputed during the hearing before me that Niva Rani Devi, who had, admittedly, inducted the Defendant to the Suit premises, was not the owner thereof. The plaintiff claims to be the owner (and landlord) in respect of the Suit premises under the aforesaid Deed of Settlement dated 8-10-1958 on the demise of Niva Devi as per the terms embodied therein. The Defendant is seeking to challenge the plaintiffs ownership in respect of the Suit premises. In view of the plea taken by the plaintiff if she is not the owner of the suit premises, the way claimed by her, she could not conceivably have the Defendant's landlord in respect thereof, in the given facts and circumstances. The plaintiff is stated to have send a letter of attornment to the Defendant after Niva Rani's demise. It would seen significant and observable to note that the Defendant had never challenged the plaintiffs ownership in respect of the Suit premises thereafter. It would further oddly appear from the record that the Defendant had clearly admitted in paragraph 4 of his application under Section 17(1) of the West Bengal Premises Tenancy Act, 1956, filed before the Trial Court on 4-5-1985, that he is a monthly tenant under the plaintiff in respect of the suit premises at a rent of Rs. 190/- only per month according to English Calender month. As already indicated above, the Plaintiff could have the Defendant's landlord in respect of the suit premises only if she is the owner thereof, in the facts and circumstances pleaded by her, the Defendant not having been inducted to the suit premises by her. It would further pretty clearly appear from paragraph-5 of the application filed by the Defendant under Section 17(2) of the aforesaid Act on the same very day on 4-5-1985 that he simply denied that he is a defaulter in payment of rent, as alleged in the Plaint, without challenging that the plaintiff is the landlord in respect of the Suit premises by virtue of ownership claimed by her. The record would further make clear that the Defendant had been paying rent to the plaintiff since April, 1980 and had continued to deposit rent thereafter in the name of the plaintiff. The Defendant clearly, therefore, was never doubtful who was his landlord in respect of the Suit premises, in the facts and circumstances of the instant case.
12. As already indicated, the plaintiff claims to be the owner of the Suit premises under the relevant Deed of Settlement dated 8-10-1958 on the demise of the settlor Niva Rani Devi with effect from 22-12-1978 as per the terms embodied therein, as specifically pleaded in Paragraph-1 of the Plaint. Clause-7 of the aforesaid Deed of Settlement provides as follows: -
"In case before the death of the settlor the said Ramdas Lahiri dies or refuses at any time to act as Trustee then after the death of the settlor or when the Trustee refuses to act as Trustee the said portions of the property shall vest on the said Himangshu Ray and Chhabi Rani Mundra in the manner stated above, absolutely and for ever."
13. Ramdas Lahiri was the Trustee under the said Deed of settlement. It appears from the records of the Lower Appellate Court that the Plaintiff-Respondent had filed a petition before the Court on 5-9-1990 under Order 41, Rule 27 of the Code of Civil Procedure praying for admitting the two death certificates in respect of Ram Das Lahiri and Niva Rani Devi, issued by the Calcutta Municipal Corporation into evidence in terms thereof for the reasons stated therein by serving copy thereof upon the learned Advocate for the Appellant. The Respondent had stated therein that Niva Rani Devi had died on 22/12/1978 as pleaded by her in the plaint, and that the Trustee Ram Das Lahiri had died before her death on 4-12-1959. Even though a copy of the said petition was served upon the learned Advocate for the Appellant no objection appears to have been filed on his behalf thereagainst before the Lower Appellate Court. It is utterly unfortunate and painfully disappointing to note that the petition so filed by the Respondent had not been disposed of by the Lower Appellate Court, which was initially fixed for hearing on 2-1-1991, along with the appeal and Rule in terms of the Court's order dated 20-111990. Even though the Appeal has been disposed of the said petition had not been disposed of by the Lower Appellate Court. That being so, I would feel inclined to dispose of the same myself for the ends of justice, as submitted by the Learned Advocate for the Respondent Plaintiff. As already noted, the plaintiff-Respondent had sought to bring the two Death Certificates in respect of Niva Rani Devi and Ramdas Lahiri, issued by the appropriate Authority of the Calcutta Municipal Corporation on 10-02-1979 and 16-1-1990 respectively bearing the seals and signatures of the appropriate Authorities thereon, being the extracts from the Register of deaths maintained by the Calcutta Municipal Corporation. The said two Death Certificates are nothing short of public documents, which are relevant in the nature of this Suit. The same needs to be admitted into evidence for the ends of Justice as such. More so, when no objection appears from the Lower Appellate Court to have been filed there against by the Defendant/Appellant. Though belated, I would, accordingly, feel inclined to admit the said two death certificates into evidence in terms of the aforesaid petition filed by the Plaintiff-Respondent before the Lower Appellate Court under Order 41, Rule 27 of the Code of Civil Procedure. Let the aforesaid two original death certificates issued by the appropriate authority of the Calcutta Municipal Corporation be marked exhibits 16 & 16/1. The aforesaid two death certificates being, what they are, there could clearly be no mistaking that the Trustee Ram Das Lahiri had died on 4-12-1959, shortly after the execution of the relevant Deed of settlement on 8-10-58, long before the death of the settlor Niva Rani Devi on 22-12-1978. That being so, the Lot-B property mentioned in the said Deed of Settlement, covering the premises in Suit, must be deemed to have vested on the plaintiff-Respondent Chhabi Rani Mundra, absolutely and for ever, in terms of Clause-7 thereof as the Trust must be held to have extinguished in terms of Section 77 of the Indian Trusts Act, 1882, is the aforesaid circumstances. In view of the plea taken by the plaintiff in paragraph 1 of the plaint and the aforesaid evidence on record, the decision , referred to by the learned Advocate for the Appellants, would be of little avail to them.
14. In view of the discussions above and for the reasons recorded by the Courts below, and having regard to the overwhelming and cumulative materials/evidence on record, it would be difficult to hold that the Plaintiff is not the owner of the Suit premises. That being so, there has neither been error of law, nor of fact, on the part of the Courts below in decreeing the Suit on the finding that the plaintiff is the owner of the suit premises and that she reasonably requires the same for her own use and occupation and for use and occupation by the members of her family having no other reasonably suitable accommodation elsewhere. Having regard to the plaintiffs case of reasonable requirement, as made out in the plaint, the evidence led in support thereof, and the findings thereon by the Courts below, with which I am in complete agreement, which neither be interfered with, the decision , referred to by the learned Advocate for the Appellants, would neither of any assistance to them. There seems to be no merit whatsoever in this Appeal as such, which is thus liable to fail, as it must.
15. In the above premises, the Appeal be dismissed with cost. The Judgment and Decree rendered by the Courts below be hereby confirmed.
16. The Defendant-Appellants are hereby allowed two months time from date for vacating and delivering peaceful possession of the suit premises in favour of the plaintiff-Respondent. On their failure to do so, the plaintiff-Respondent shall recover possession thereof in execution according to law.
The Stay Order granted herein stands vacated.
Hearing fee assessed at Rs. 2,500/- only, besides usual costs. Let the Lower Court Records be sent down to the Court below forthwith.