Calcutta High Court
Uma Devi Khanna And Anr. vs Ava Rani Das on 28 June, 2005
Equivalent citations: 2005(3)CHN358
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This appeal is at the instance of tenant-defendants in a suit for eviction and is directed against the judgment and decree dated September 5, 1994 passed by the learned Judge, 5th Bench, City Civil Court at Calcutta in Ejectment Suit No. 1066 of 1986 thereby passing a decree for eviction against the appellants on the grounds of reasonable requirement, violation of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and also on the ground of sub-letting.
2. The plaintiff-respondent filed the aforesaid suit against the appellants alleging that the appellants were monthly tenants under her in respect of the suit property at the monthly rental of Rs. 80/- payable according to the English calendar month. According to the plaintiff, the defendants committed default in payment; of rent, sublet the property in favour of one Raju Kapoor, and committed acts contrary to the provisions of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. In addition to those grounds, the plaintiff reasonably required the suit premises for her own use and occupation.
3. The aforesaid suit was contested by the present appellants by filing written statement thereby denying the material allegations made in the plaint. The specific defence of the appellants was that on or about 1950 one Ganesh Prasad Khanna, the husband of appellant No. 1 and the father of appellant No. 2 took the tenancy in respect of entire suit premises No. 10/2, Vivekananda Road from one Panchu Daw and others at a monthly rental of Rs. 35/- according to English calendar month. The said tenancy was taken for manufacturing hosiery goods and the business under the style Jan Kalyan Hosiery was being carried on at the suit premises. After the partition amongst the landlords, one Manindra Krishna Daw started collecting rent from Ganesh Prasad Khanna as if he was sole landlord. The said rate of rent was enhanced from time to time and at present it was Rs.80/-per month. According to the defendants, vide letter dated 25"'February, 1972 issued by Rajendra Lal Dutta & Company, Solicitors purported to have been written under instructions from or on behalf of the plaintiff asserted that their client had purchased the suit property but no such intimation was received from Manindra Krishna Daw. However, the defendants alleged, the plaintiff pressurized the said Ganesh Prasad Khanna to pay to the plaintiff the rent in respect of the suit premises at the said rate of Rs. 80/- per month. The said Ganesh Prasad Khanna died intestate on 23rd March, 1983 leaving behind him the defendants being the widow and the son respectively and also three unmarried daughters namely, Kiran, Soni and Sima who were residing with the deceased at the time of his death and all of them jointly inherited the said tenancy. Thereafter, Kiran was given in marriage but she died issueless on 18lh January, 1986 leaving her husband Om Narayan Sarin as her heir. According to the defendants, in view of the aforesaid fact, all the heirs of Ganesh Prasad Khanna became the joint tenants in respect of the suit premises and in the absence of the other heirs than the two defendants, the suit was not maintainable. The allegations contained in the plaint as regards various grounds of eviction were also denied.
4. At the time of hearing the plaintiff herself gave evidence in support of her plaint case and in addition to that, the Advocate Commissioner who inspected the premises appeared as witness No. 2 for the plaintiff.
5. Curiously enough, in spite of the aforesaid specific defence taken by defendants in their written statement as regards want of necessary party, the plaintiff did not utter a single sentence in examination-in-chief denying the defence case that Ganesh was the original tenant. In cross-examination, she, on the other hand, made the following admission:
"Ganesh Prasad Khanna was a tenant in the suit house during my purchase. I do not remember when he died. I enquired and learnt that Ganesh Babu has 3 daughters and one son and his wife was alive. The existence of the unmarried daughters were within my knowledge before filing of this suit. I cannot say how long Ganesh Babu occupied the suit premises as a tenant. I cannot say whether Ganesh Babu was a tenant of the premises since 1950, at a rental of Rs.35/-, payable according to English calendar month. Ganesh Babu started manufacturing hosiery goods in the premises. (Then says there was no factory inside the premises). Rent became Rs. 80/- after my purchase."
6. The appellant No. 2 gave evidence in support of the defence case and in evidence stated that his father was the original tenant of the suit premises who died leaving widow, one son and three daughters and that those daughters wore residing with their father at the time of his death. It was further asserted that on the death of Ganesh, all the heirs have inherited tenancy. However, on the next date of examination, none appeared on behalf of the defendants and even the DW-1 did not conclude his evidence, as a result, the DW-1 could not be cross-examined by the learned Advocate for the plaintiff. The learned Trial Judge, however, on the basis of part evidence given by the DW-1 and the evidence adduced on behalf of the plaintiff decreed the suit on contest.
7. The present plaintiff filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the decree but such application was dismissed as not maintainable as the suit was not decreed exparte. The present appellants filed a miscellaneous appeal before this Court but the same ended in dismissal by affirming the view of the learned Trial Judge that the decree was not an ex parte one but a contested one by taking aid of the explanation added to Order 17 Rule 2 of the Code. Subsequently, the appellants have preferred the present first appeal against the decree along with an application for condonation of delay. Such application for condonation of delay was allowed and the present appeal was heard on merit.
8. Mr. Mukherjee, the learned Advocate appearing on behalf of the appellants has at the very outset contended before us that in the absence of all the heirs of Ganesh Prasad Khanna, the original tenant, the suit was not maintainable. Mr. Mukherjee submits that his clients in their written statements having taken specific plea that Ganesh Prasad Khanna was the original tenant and on his death the tenancy has devolved not only upon the appellants but also on three other daughters, it was the duty of the plaintiff to assert in his examination-in-chief that Ganesh Prasad Khanna was never a tenant in respect of the suit property. Mr. Mukherjee points out that in examination-in-chief the plaintiff has not stated anything about Ganesh and that in cross-examination she was compelled to admit that Ganesh was a tenant in respect of the suit property at the time of her purchase and that he died thereafter. Mr. Mukherjee further contends that the plaintiff in cross-examination also admitted that there are other heirs of Ganesh than the appellants and even the voter list exhibited by the plaintiff shows that two unmarried sisters were residing in the suit property in the year 1992. Mr. Mukherjee submits that from the aforesaid material it is well-established that in the absence of other heirs of Ganesh, the suit was not maintainable.
9. The aforesaid contentions of Mr. Mukherjee are seriously disputed by Mr. Mahato, the learned Advocate appearing on behalf of the appellant. Mr. Mahato contends that in this case defendant no doubt has taken the plea that Ganesh was the original tenant and that after the death of Ganesh, the tenancy devolved upon all his heirs but the defendant did not adduce any evidence in support of such plea. Mr. Mahato contends that the DW-1 was examined-in-chief in part and thereafter he never appeared, as a result, plaintiff did not get any opportunity to cross-examine DW-1 on the aforesaid question. Mr. Mahato contends that unless defendant proved such defence by giving independent evidence, the plaintiff was under no obligation to contradict those allegations is the examination-in-chief. He, thus, prays for rejecting the aforesaid point taken by Mr. Mukherjee. Mr. Mahato further contends that in this case it has been well-established from evidence that three of the grounds mentioned in Section 13 of the West Bengal Premises Tenancy Act were proved and as such, the plaintiff was rightly given a decree for eviction. He, thus, prays for dismissal of the appeal.
10. Therefore, the first question that arises for determination in this appeal is whether the suit filed by the respondent should be held to be not maintainable for not impleading all the heirs of Ganesh Prasad Khanna.
11. We have already pointed out that in the written statement specific plea was taken that Ganesh was the original tenant and after purchase of property by plaintiff, Ganesh paid rent to the plaintiff and thereafter Ganesh died leaving not only appellants but also the three other unmarried daughters who were living in the suit property at the time of death of Ganesh.
12. It is true that in support of such defence, the DW-1 gave evidence in part but thereafter he did not appear to face cross-examination. Once, defendants take a specific plea as regards maintainability of the suit on the ground of want of necessary party on the basis of certain fact in written statement, it is the duty of the plaintiff to dispute such fact by giving evidence in examination-in -chief. In the present case notwithstanding specific allegation made in the written statement that Ganesh was a tenant under plaintiff and such tenancy continued till his death, the plaintiff did not care to dispute such fact. In cross-examination, PW-1 admitted the tenancy of Ganesh in the suit property and also admitted that Ganesh died leaving other heirs than the appellants. Once, such admission is made in cross-examination by the plaintiff, in our view, there was no necessity of giving further evidence by defendant in support of the defence taken by them. Even from the documentary evidence produced by plaintiff herself, namely, voter list of 1992, it appeared that the names of two of the unmarried daughters of Ganesh appeared as inhabitants of the suit property. Be that as it may, even if we do not take into consideration the part evidence given by DW-1, the PW-1 herself having admitted in cross-examination that Ganesh was the original tenant but died after her purchase and she having failed to disclose any other evidence showing either the surrender of the old tenancy by all the heirs of Ganesh or creation of a new tenancy in favour of the present appellants after such surrender, the defence taken by defendants as regards want of necessary party has been proved by evidence given by plaintiff herself.
13. Therefore, we do not find any substance in the contention of Mr. Mahato that unless defence taken by defendants is proved by their evidence, the Court cannot infer the existence of the valid defence from the admission of the plaintiff.
14. Mr. Mahato has a last resort tried to impress us that the PW-1 wanted to say that Ganesh was holding a different tenancy under other co-sharers in the suit property. We are not at all impressed by such submission. We have already quoted the admission of PW-1 in cross-examination where in unambiguous terms she admitted continuance of the tenancy of Ganesh in the suit property till his death.
15. It is now settled law that if on the death of a tenant some of his heirs are left out in a suit for eviction, the suit is not maintainable. [See Textile Association (India) v. Balmohan Gopal Koru, ; Kumar Jagadish Chandra v. Ellen K Patrica D' Rozarie, , relied on by one of us sitting singly in Biswadeb Mukherjee & Ors. v. Gourmohan Das De & Anr., reported in 1998(1) CLJ 327.]
16. Mr. Mahato in this connection placed strong reliance upon the decision of the Supreme Court in the case of Ashok Chintaman Juker & Ors. v. Kishore Pandurang Mantri & Anr., and contended that the decree passed against the appellants would be equally binding upon the other heirs of the deceased Ganesh notwithstanding the fact that they were not made parties even if it is accepted for the sake of argument that the tenancy of Ganesh is still continuing. So far the said decision cited by Mr. Mahato is concerned, we find that in the said decision a Bench consisting of two-Judges by relying upon three decisions of the Apex Court, namely, 1) H.C. Pandey v. G.C. Paul, ) Kanji Manji v. Trustees of the Port Bombay, and 3) Ganapath Ladha v. Sashi Kant, came to the conclusion that in case of death of a tenant, all his heirs are not required to be made parties in a suit for eviction. However, a Bench consisting of three-Judges in the case of Textile Association (India) (supra), considered the cases of H. C. Pandey (supra), and Kanji Manji (supra), and held that the principles laid down in those cases relating to service of notice do not apply when the question of making all the joint tenants as parties in a suit for eviction arises and held that in the absence of all such joint tenants, the suit was not maintainable. The learned Judges in the said case of Ashok Chintaman Juker (supra), in paragraph 15 of the judgment simply took note of the case of Textile Association (supra), by making the following observations:
"In the case of Textile Association (India), Bombay Unit v. Balmohan Gopal Kurup, , this Court on the facts and circumstances stated therein took the view that the ex parte decree obtained against mother and brother was not binding against the respondent therein."
17. But Their Lordships, however, did not explain why Their Lordships were not following the view taken in that case or in what respect the facts involved therein were different from those involved in the case of Textile Association (India). Even the earlier decision of the Supreme Court in the case of Kumar Jagadish Chandra (supra), taking a contrary view, was not noticed. Over and above, the learned Judges relied upon the case of Ganapath Ladha (supra), by totally overlooking the fact that the said case of Ganapath Ladha (supra), was expressly overruled by a Bench of five-Judges in the case of Gyan Devi Anand v. Jeevan Kumar, . We are, therefore, unable to accept the principles laid down in the case of Ashok Chintaman Juker (supra), relied upon by Mr. Mahato, as a valid binding precedent.
18. In this case, therefore, in the absence of other heirs of Ganesh, the suit is not maintainable only against two of the heirs of Ganesh. As regards the findings of the learned Trial Judge on the existence of the various grounds for eviction, we are of the opinion that such findings need not be scrutinized in this appeal, as those are not binding upon the other heirs of Ganesh. We, therefore, refrain from making any observation on the question of legality of those findings in this appeal when we are of the view that suit is not properly constituted and should be held to be not maintainable for want of necessary parties.
19. We, therefore, allow the appeal and set aside the judgment and decree passed by the learned Trial Judge only on the ground that suit filed by the plaintiff-respondent was not maintainable in the absence of all the heirs of Ganesh. We make it clear that we have not gone into the merit of other issues involved in this suit. In the facts and circumstances, there will be, however, no order as to costs.
Rajendra Nath Sinha, J.
20. I agree.