Calcutta High Court
Man Prakash Projects Pvt. Ltd vs Harish Chopra & Ors on 21 August, 2018
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.2889 of 2017
With
EC No.125 of 2011
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
MAN PRAKASH PROJECTS PVT. LTD.
Versus
HARISH CHOPRA & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 21st August, 2018.
Appearance:
Mr. Rahul Kinkar Pandey, Adv.
Mr. Dipankar Dhar, Adv.
Mr. Rudra Dhar, Adv.
The Court : This is an application by one Daud Ali claiming himself to be the husband of Sahida Begum. Mr. Daud Ali has filed this application on the basis of a special power of attorney executed in his favour by Sahida Begum on 7th October, 2015. The application is filed under Order 21 Rule 97 to 101 of the Code of Civil Procedure.
Sahida claims to be the daughter of one Yasin Ali. The applicant contends that Yasin Ali was the original tenant under one Sachindra Nath Mitra. After the death of Sachindra Nath Mitra rent used to be tendered to Sibaji Mitra. Yasin Ali died on 31st May, 2010 and thereafter, Sahida became a tenant under Mr. Sibaji Mitra. Yasin Ali used to work as carpenter for Sachindra Nath Mitra and since he was working for Sachindra Nath Mitra, he was inducted as a tenant "in that capacity" and he continued to remain as a tenant until his death on 31st May, 2010. The initial rent of Rs.80 which was increased to Rs.150. After the death of Yasin Ali, Sahida used to pay the rent on a 2 monthly basis in cash and the same are recorded in an "exercise book" used to be kept by Mr. Sibaji Mitra. At the time when Yasin Ali passed away, Daud used to supervise the work in the workshop. Thereafter, Daud started his own business of interior decoration from a shop at 241 B.B. Ganguly Street and opened another shop of plywood, lamination and furniture in the name of his wife Sahida Begum.
This application is filed when the receiver in execution of a decree passed in favour of the plaintiff went to the suit premises for the purpose of handing over vacant possession of the suit premises to the decree-holder.
The applicant claims that Sahida Begum was in lawful occupation of a room and portion of one storied, tin-shedded premises from which she used to carry on business of plywood, laminates and veneer under a permanent trade licence in her name and with an electricity meter in her name, both given at the addresses of the said premises, namely, 5/2H, Halder Lane, Kolkata - 700 012, P.S.-Bowbazar and Daud used to look after the said business of his wife.
Daud has given evidence in this proceedings. In the proceedings apart from stating that he used to look after the business of his wife and his father-in-law, who was alleged a tenant of Sachindra Nath, he has stated that prior to 2015 Sahida Begum used to carry some business and he used to render assistance to Sahida in her work. It was basically a small carpentry business. In order to carry such business trade licence was obtained in the name of Sahida as well as electricity connection. Doud, during his examination, has produced trade licence dated 28th July, 2017 and electricity bill in the name of Sahida Begum dated 19th December, 2017 for the month of November, 2017. The witness has stated that the plaintiff has lodged a false complaint before the Executive Magistrate, Kolkata. It is stated that the report filed in the said proceedings was manipulated and doctored. The said proceedings was ultimately dropped. When 3 confronted with question as to whether he was aware of any person in the name of Rahul Amin Khan @ Toton who was using a portion of the premises occupied by Uttam Pal, the witness has deposed that he had heard about the gentleman but he had never seen him.
After the conclusion of the cross-examination the plaintiff has disclosed a communication dated 9th February, 2018 from CESC Ltd. to Sahida Begum with a copy marked to the plaintiff which shows that on the basis of a complaint received from the plaintiff raising objection regarding transferring of name from Rahul Amin Khan to Sahida Begum on 10th August, 2015, Sahida was asked to produce relevant documents to establish her stand, failing which CESC Ltd. would proceed to revert the said account in favour of the erstwhile consumer namely Rahul Amin Khan. The plaintiff has also produced an electricity bill for the month of April, 2018 having the consumer no.33004207009 dated 19th May, 2018 in the name of Rahul Amin Khan of 25, Gangadhar Basu Lane, Kolkata- 700 012. The deposition of the witness as well as the submission of the learned Counsel in this regard are quite interesting. Although in the show cause to the criminal proceedings Sahida has alleged that she is holding a permanent trade licence in her name with an electricity meter in her name but the only document produced during examination is a trade licence of 28th July, 2017 and the electricity bill dated 19th December, 2017. The witness was quite evasive in his reply as to how he obtained electricity connection in the suit premises. Initially, the witness stated that he had no recollection of what exactly had happened because it is an incident happened "long time back" but thereafter he realized that it was not that old as it happened according to the witness in 2015, the witness attempted to get over it by stating that he had engaged one workman to obtain electricity connection and it was that person who had done the needful. There is a procedure by which an occupier has 4 to apply to the CESC Ltd. To obtain electricity connection an occupier is required to make a security deposit. Even if it is assumed that Yasin was having an independent meter which, however, has not been established at the time of trial one would reasonably expect that Sahida who claims to be in possession since the death of his father would have immediately made an application for transferring the said meter in her name and would not wait till 2015 to obtain an electricity connection. The witness has failed to establish that electricity connection was obtained in 2015 and that too in the name of his wife. The witness has deposed that it was a fresh connection. The defendant had failed to produce the application as well as the essential documents to show that the new connection was in the name of Sahida. This is relevant when one considers the final order of the Magistrate dated 28th September, 2015 where the learned Magistrate while disposing of the criminal proceedings has recorded the following:
"On perusal the police report it appears that during inquiry he learnt that 25 Ganngadhar Babu Lane, was the property of one Sachindra Nath Mitra and it was leased to one Prakashwati Chopra since deceased and her son Dharam Pal Chopra is running a transport business in a portion of the premises under the name of M/s. Capital Transport Cororation and another portion was given to one Uttam Pal for more than 50 years. He further mentioned Santosh Kumar Singhania had made a GDE at the P.S. being no.1993 dated 21.07.2015. Inquiry in respect of GDE was made on 23.07.2015. On visiting the said premises it was learnt that one portion of the said godown was occupied by the OP no-1 by keeping plywood there. OP no.1 Dawood Ali stated he was using the portion of Rahul Amin Khan @ Toton who was using the portion of Uttam Pal and on being asked to show any document in respect of occupying portion he produced a certified copy of enlistment in the KMC in the name of his wife Sahida Begum and one consolidated bill of CESC in the name of Sahida Begum." (Emphasis supplied) Although the findings in the said proceedings may not independently carry much weight but if what is stated in the said report and the order are corroborated in material 5 particulars the same become relevant for consideration as to whether the stand of the applicant in this proceedings is bona fide. The evidence of Daud and documents forming the part of the proceedings makes such order relevant. The existence of the police report and the order are not in dispute. Daud was quite evasive in his reply as to the identity of Rahul Amin Khan. Now that the decree-holder has been able to produce the electricity bill for the month of April, 2018 in the name of Rahul Amin Khan having same consumer number which has been relied by Sahida Begum in this proceedings it was incumbent upon the applicant to establish that the said electricity meter was independently standing in her name and the connection was not through Rahul Amin Khan. Although Daud was given opportunity to explain it by filing an affidavit he did not do so. Significantly, Sahida has not disclosed any electricity bill prior to December, 2017 and after February, 2018. In view of the disclosure of the bill for the month of April, 2018 it is incumbent on the applicant to disclose the application form on the basis of which electricity connection was obtained. Moreover, the applicant is in possession of the best evidence to establish her right and the applicant having failed to disclose such evidence an adverse inference has to be drawn against the said applicant.
Mr. Dhar, learned Counsel representing the applicant, has submitted that his client has not received any such communication from CESC Limited and has not received any bill for the month of June and July, 2018 and accordingly no disclosure could be made of the subsequent bills but could not offer any explanation of the bill for the month of April, 2018 in the name of Rahul Amin Khan having the same consumer number. One would except the applicant to disclose documents which would show that the applicant is having an independent electricity meter in her own name and she has complied with all the formalities. In absence of any evidence to show that the applicant on her own has applied for the electricity meter and a new connection was given to the 6 applicant the document disclosed in this proceeding by the plaintiff/decree-holder has become relevant as it is now clear that Sahida was enjoying the electricity connection through the meter of Ruehul Amin Khan as the consumer number of the electricity bill for the month of November 2017 in the name of Sahida Begum is having the same consumer number of Ruehul Amin Khan. It also strongly suggests that she was not in actual physical possession of the room possibly allowed by Ruehul to carry on business from the said room Ruehul has not resisted the execution of the decree. It is trite law that electricity connection or a trade license are not proof of title to the property. It may at the highest show that the applicant was in occupation. It does not make the occupant a lawful occupant. In this proceeding, the right title and interest of the applicant is required to be adjudicated. A mere possessory right does not permit the applicant to continue further in the face of an eviction decree unless the applicant is able to establish her independent right, title and interest in the property. On the basis of the evidence of Daud it appears that Yasin used to work as a carpenter for Sachindra and for that purpose he might have been allowed to stay which is in the nature of leave and license. There is no evidence that Yasin used to occupy any portion of the premises at any point of time. It is incumbent upon the applicant to establish by a cogent evidence that a relationship of landlord and tenant existed between Yasin and Sibaji. Moreover, a married daughter does not automatically become a legal heir of the deceased. Under Section 2(g) of the West Bengal Premises Tenancy Act, 1997 it is only the spouse, son, daughter, parent of the widow of the pre-deceased son who were ordinarily living with the tenant as the members of his family and were dependent on him were allowed to occupy the premises for a period of 5 years after the death of the tenant. There is no evidence on record that the applicant was dependent upon Yasin or she was ordinarily living with Yasin at the time of his death. In fact, the evidence goes to 7 show that Sahida had independent source of income. The period of five years has also expired in the meantime. There are contradictions in the averments in the show cause petition and the evidence adduced in Court. The applicant having failed to establish any right, title and interest in respect of the property in question.
This application thus fails. However, there shall be no order as to costs. Mr. Dhar, learned Counsel has prayed for stay of operation of this order. The same is considered and rejected.
Under such circumstances, GA No. 2889 of 2017 stands dismissed.
(SOUMEN SEN, J.) B.Pal/sp/As/GH/sk