Calcutta High Court
Smt. Padmabati Debi vs Chittaranjan Dasgupta And Anr. on 14 July, 2005
Equivalent citations: (2005)3CALLT516(HC)
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. The second appeal is directed against the Judgment and decree dated 8th September 2004 passed by the learned Additional District Judge, 5th fast track Court at Barasat in Title Appeal No. 02 of 2004 reversing the Judgment and decree dated 8th September 2003 passed by the learned Civil Judge (Junior Division), 3rd Court at Sealdah in Title Suit No. 70 of 1999.
2. The appellant in this appeal was the plaintiff in a suit for eviction on the ground of subletting.
3. The plaintiff filed a suit for eviction against the defendant No. 1 (tenant) on the ground of subletting.
4. The plaintiff alleges that the defendant No. 1 who is a tenant in respect of the suit property lying at premises No. 132C, Nagendra Nath Road, PS Dumdum has permanently shifted his residence to premises No. A-52, Survey Park, Santoshpur, Kolkata - 75 after subletting the suit premises in favour of his elder brother the defendant No. 2. Hence this suit was filed after service of notice of ejectment under Section 13(6) of the West Bengal Premises Tenancy Act upon the defendant No. 1 by registered post with A/D as well as under Certificate of Posting. The service which was sought to be effected upon the defendant No. 1 by registered post with A/D at the suit premises came back unserved with the postal remark left, addressee out of station.
5. The defendant No. 1 contested the said suit by filing written statement denying the allegation of subletting. The defendant No. 1 claimed that all the brothers of the defendant No. 1 including the defendant No. 2 have been staying in the suit premises with the defendant No. 1 since the inception of the tenancy.
6. The said defendant claims that the said defendant has his permanent place of residence at the suit premises and the said defendant has not parted with possession of the suit premises in favour of the defendant No. 2, as alleged.
7. The legality, validity and sufficiency of service of ejectment notice upon the said defendant was also challenged in the said written statement.
8. The learned trial Judge was pleased to pass a decree for eviction on contest against the defendant in the said suit on the ground of subletting. The learned trial Judge also found that the ejectment notice was duly served upon the defendant No. 1.
9. Challenging the said Judgment and decree of the learned trial Judge, the defendant/respondent No. 1 filed an appeal being Title Appeal No. 02 of 2004 before the learned District Judge at Alipore. The said appeal was subsequently transferred to the Court of the learned Additional District Judge, 5th fast track Court at Barasat.
10. The learned first Appellate Court was pleased to allow the said appeal on contest by setting aside the Judgment and decree of the learned trial Judge only on the ground that the ejectment notice was not properly served upon the defendant/respondent No. 1 herein determining his tenancy. The learned Appellate Court held that the service of such ejectment notice upon the tenant is a precondition for filing a suit for eviction and since the notice under Section 13(6) read with Section 106 of the Transfer of Property Act was not properly served upon the tenant determining his tenancy, the Judgment and decree of the learned trial Judge was set aside by the learned first Appellate Court.
11. This conclusion of the learned first Appellate Court indicates that though notice was served but such service having not been legally effected upon the defendant, the tenancy of the defendant No. 1 has not been determined and as such the suit is not maintainable.
12. While allowing the said appeal, the learned Court below however affirmed the findings of the learned trial Judge on the issue regarding subletting.
13. Thus, though both the Courts below concurrently found that the defendant No. 1 is guilty of unauthorized subletting the suit property in favour of the defendant No. 2 without obtaining consent in writing from the plaintiff/appellant, but still then the relief claimed by the plaintiff in the said suit was denied for want of legal service of ejectment notice upon the tenant/defendant No. 1 determining his tenancy.
14. Such a decree of the learned first Appellate Court is under challenge in this appeal before this Court at the instance of the plaintiff/appellant.
15. A cross-objection has also been take out by the defendant/ respondent No. 1 in connection with the said appeal wherein the propriety of the findings of the learned Court below on the issue regarding subletting was challenged by the defendant/respondent No 1.
16. While admitting the said appeal, the following substantial questions of law were formulated by the Division Bench of this Court :
I. Whether the learned Court of Appeal below erred substantially in law by allowing the al on the sole ground of non-service of notice of suit when admittedly the notice sent by Certificate of Posting was correctly address of the defendant at the suit premises.
II. Whether the learned Court of Appeal below erred substantially in law by not giving effect to the presumption arising out of notice sent by Certificate of Posting merely on the ground that the defendant was not residing in the suit premises when admittedly the premises was occupied by the defendant's own brother and was alleged to be under the defendant's own control.
17. Mr. Saktinath Mukherjee, learned senior advocate, appearing on behalf of the appellant, contended before this Court that the effect of service of ejectment notice upon the defendant/respondent No. l under Certificate of Posting has not been properly considered by the learned first Appellate Court in the light of the following Division Bench decisions of this Hon'ble Court :
(i) (Kanak Lata v. Amal Kumar),
(ii) (Commissioner of Income-tax, West Bengal v. Malchand Surana, Calcutta)
18. Mr. Mukherjee has also relied upon another decision of Patna High Court in the case of Ram August v. Bindeshwari to support his aforesaid contention,
19. Mr. Mukherjee submitted that the Certificate having been given by the postal authorities in the ordinary course of business must be presumed to be genuine unless presumption is rebutted by cogent proof. Mr. Mukherjee further contended that the contents of the certificate must be presumed to be true unless they are proved to be false. Here in the instant case, no evidence has been given by the defendant challenging the genuinity of the certificate. According to Mr. Mukherjee, in the absence of such challenge with regard to the genuinity of the said certificate of posting, the Court below ought to have presumed that such service was duly effected upon the respondent No. 1 by following the illustration (f) to Section 114 of the Evidence Act. To support the said contention, Mr. Mukherjee strongly relied upon the Division Bench decision of this Court in the case of Kanak Lata v. Amal Kumar (supra).
20. Mr. Mukherjee further contended that if the notice is properly addressed and prepaid, the mere fact that the physical delivery of the notice was made to a person other than the addressee and the person who had no authority to receive the letter on the addressee's behalf would not be sufficient to prove that there had been no proper service. According to Mr. Mukherjee, the presumption of proper service cannot be rebutted by the mere fact that the actual service had been effected on a different person. In support of such contention, the decision in the case of Commissioner of Income-tax, West Bengal (supra) was relied upon by Mr. Mukherjee.
21. Mr. Mukherjee pointed out that here in the instant case no case of enmity between the brothers, viz., the defendant Nos. 1 and 2 herein, has been proved. The relation between the brothers is cordial. If that be so, then no one can believe that the ejectment notice which reached the destination did not ultimately reach the hands of the defendant No. 1.
22. Thus, according to Mr. Mukherjee. the presumption regarding the service of notice upon the defendant No. 1 should have been drawn by the learned first Appellate Court in the facts of the instant case, as the mere denial of service of such notice does not amount to rebuttal of service upon the addressee.
23. Mr. Mukherjee further pointed out from the Judgment of the learned first Appellate Court that even the learned Court below has not held that the service was not effected upon the defendant No. 1. The learned Court below simply held that service was not legally effected upon the defendant No. l determining his tenancy.
24. According to Mr. Mukherjee since no specific mode is prescribed for effecting such service under the West Bengal Premises Tenancy Act, the service which has been effected upon the defendant No. 1 at the address of the suit premises, cannot be held to be illegal.
25. Mr. Mukherjee further contended that the findings on subletting is a finding of fact and as such the concurrent findings of facts of both the Courts below on subletting cannot be disturbed by this Court in second appeal, particularly when such findings are not perverse. By drawing the attention of this Court to the entire Judgments of both the Courts below, Mr. Mukherjee submitted that the entire materials on record, i.e., the pleadings and evidences of the respective parties were taken into consideration by both the Courts below while arriving at such findings on the issue regarding subletting.
26. Mr. Mukherjee further contended that wrong appreciation of evidence and/or a different conclusion can be arrived at by the appeal Court on appreciation of the evidence of the parties, cannot be a ground for interference under Section 100 of the Civil Procedure Code. Accordingly, Mr. Mukherjee submitted that findings which were arrived at by both the Courts below on the issue regarding subletting cannot be interfered with by this Court in second appeal.
27. Mr. Mondal, learned advocate, appearing for the respondent No. 1 refuted the aforesaid submission of Mr. Mukherjee with regard to the presumption of service of notice upon the defendant No. 1 by relying upon the following decisions :
(i) 81 CWN 629 (J. Me. Gaffin v. L.I.C. of India),
(ii) (Jitendra Nath v. Bijoy Lal).
(iii) 1988 (1) CLJ 250 (Mono Ranjan Dasgupta v. Suchitra Ganguly).
28. By referring to the plaint itself, Mr. Mondal pointed out that the plaintiff himself knew the address of the defendant No. 1 where the said defendant was residing at the relevant time, but still then notice was admittedly sent for service upon the said defendant at the suit premises where the said defendant did not admittedly reside at the relevant time.
29. Mr. Mondal contended that when the service by registered post could not be effect upon the defendant No. 1 in the said address on the ground that the said addressee left the said premises, presumption regarding due service upon the defendant at the said address under Certificate of Posting cannot be drawn as tender of the postal article to the said defendant was impossible as admittedly the said defendant was not available at the said premises to receive the said service.
30. By relying upon the aforesaid decisions Mr. Mondal submitted that the presumption of service is rebutable and in view of the denial of such service by the defendant No. 1 himself, the Court below rightly refused to draw presumption of due service in the facts of the instant case.
31. Mr. Mondal further submitted that the findings regarding subletting which were arrived at by both the Courts below are absolutely perverse as the same are not based on materials on record ultimately. Mr. Mondal submitted that no interference is necessary in the facts of the instant case, as service of ejectment notice which is a precondition for filing an ejectment suit, could not be proved to have been duly effected upon the defendant No. 1 by the plaintiff/appellant in the instant case.
32. Let me now consider the submissions of the learned Counsel of the respective parties, as above.
33. For proper appreciation of the challenge with regard to the validity and legality of the ejectment notice, the relevant paragraphs of the written statement wherein the petitioner challenged the validity and legality of the said notice, are required to be set out hereunder:
5. That the notice to quit is illegal, invalid, insufficient and indefinite and the impugned notice to quit was not legally served upon the defendant. As such the tenancy in question was not determined by the impugned notice. Hence the instant suit is premature one.
10. That the contents in para 5, 6 & 7 of the plaint are all fabricated and falsehood and thereby denied and disputed by the defendant. The impugned notice to quit dated 14.12.98 as alleged in the plaint was not legally served upon the defendant and by the alleged notice the landlord tenant relationship between the parties was not determined.
34. These are the entire pleadings of the defendant with regard to the challenge regarding legality and validity of the ejectment notice. If the aforesaid pleadings are considered carefully, then the service of the ejectment notice upon the defendant seems to be not disputed by the defendant. When the sufficiency of the notice and legality of service have been challenged by the defendant, it goes without saying that service is admitted.
35. In the backdrop of the aforesaid pleadings, this Court cannot come to the conclusion that the service of the ejectment notice was not effected upon the defendant No. 1. Such service, however, may be insufficient and thereby may be illegal, but the insufficiency of notice cannot be considered effectively unless the receipted copy of the notice is produced before this Court. The evidence regarding insufficiency of notice is totally absent in the instant case.
36. On perusal of the Judgment of the learned Court below, this Court finds that even the learned Court below did not hold that service was not effected. What was held by the learned Court below, as it appears to this Court, is that notice of ejectment has not been legally served upon the defendant determining his tenancy.
37. The conclusion of the learned Court below regarding legality of service cannot be supported in view of the decision of the Division Bench of this Court in the case of Commissioner of Income-tax, West Bengal v. Malchand Surana, Calcutta (supra), as the notice sent under certificate of posting was properly addressed and pre-paid. Thus, when the said notice reached the destination, proper service of notice upon the defendant No. 1 cannot be disbelieved in view of the cordial relation between the brothers of the defendant, one of whom is admittedly residing in the suit premises which was the destination of the said notice.
38. No special mode is prescribed for service of notice under Section 13(6) of the West Bengal Premises Tenancy Act. As such, communication of the landlord's intention to file a suit by giving one month's notice to the tenant after expiry of a month of his tenancy in any mode is sufficient compliance of Section 13(6) of the said Act.
39. Furthermore 13(6) of the said Act does not contemplate determination of tenancy by notice. The said provision simply contemplates notice of suit. In this regard reference may be made to the decision of the Hon'ble Supreme Court in the case of V. Dhanpal Chettiar v. Yesodat Ammal .
40. The definition of 'Tenant' under Section 2(h) of the said Act also shows that a tenant will remain a tenant until passing of a decree for eviction against him by a Court of competent jurisdiction. As such determination of relationship between the parties by notice is not contemplated under the said Act. As such termination of tenancy by notice is not a precondition for filing a suit.
41. Accordingly, this Court is unable to hold that the service of the ejectment notice is invalid, illegal or insufficient. On the contrary, following the decisions cited by Mr. Mukherjee, as aforesaid as well as the decision of the Hon'ble Supreme Court in the case of Madan and Co. v. Wozir Jaiutr Chand , this Court holds that the service was duly effected upon the defendant No. 1.
42. Undoubtedly the presumption regarding due service under certificate of posting is rebutable as contended by Mr. Mondal, but here in the instant case, this Court does not find any effective denial regarding service of notice upon the defendant No.1. Mere denial of service of notice does not tantamount to effective rebuttal. That apart, in the backdrop of the pleadings of the defendant regarding insufficiency of notice, as indicated above, this Court does not find any substance in the submission of Mr. Mondal.
43. Accordingly, this Court holds that the finding of the learned Court below to the effect that the ejectment notice was not properly served upon the tenant terminating his tenancy, cannot be sustained.
44. Regarding the challenge with regard to the findings of the Courts below on subletting, as made out by the defendant/respondent No. l in his cross-objection, this Court finds no substance in such challenge and thus declines to interfere with the concurrent findings of fact in second appeal by relying upon the decision of the Hon'ble Supreme Court in the case of Bhagwan Das v. s. Rajdev Singh wherein it was held as follows :
7. A second appeal lies to the High Court against the decision of the Rent Control Tribunal under Section 39(2) of the Delhi Rent Control Act, 1958 only if the appeal involves some substantial question of law. the Rent Controller and the Rent Control Tribunal, on a consideration of the relevant terms of the agreement and oral evidence and the circumstances found that a clear case of subletting was established. On that finding no question of law, much less a substantial question of law, arose.
45. Here in the instant case, both the Courts below concurrently found on appreciation of evidence of the parties that the defendant No. 1 permanently shifted to his residence at Santoshpur and he does not retain any control over the suit premises which is in exclusive possession of the defendant No. 2 a brother of the defendant No. 1. Host of documents filed by the plaintiff, viz., the electricity bill, telephone bill, voters' list/electoral roll show that the defendant No. l permanently shifted to his Santoshpur residence. Admittedly the ration cards of the defendant No. 1 and the member of his family were transferred to the place of the present residence of the defendant No. 1. All these facts taken together prove that the defendant No. 1 permanently shifted to the Santoshpur residence.
46. Once such shifting of the defendant No. 1 to another premises coupled with the exclusive possession of the defendant No. 2 in the suit premises are proved by the plaintiff the burden shifts upon the defendant to prove that there was no subletting. The defendant failed to discharge the said burden by proving that even though the defendant No. 2 is in possession of the suit premises, still the defendant No. 1 has not lost control over the suit premises.
47. In the instant case, neither a case of joint tenancy nor a plea of tenancy taken by the Hindu joint family, has been taken by the defendant/respondent. The defendant/respondent No. 1 simply claimed that the other brothers of the defendant No. 1 have been staying with the defendant No. 1 in the suit premises since the inception of the said tenancy. Mere staying with the defendant does not create either a joint tenancy or a tenancy in favour of Hindu joint family. Needless to mention here that admittedly the defendant No. 1 who is holding the said tenancy is not the eldest son or Karta of the family. The nucleus and/or the joint family fund could not be proved by the defendant.
48. In such view of the matter, neither the claim of joint tenancy nor the tenancy held by the Hindu joint family, can be believed in the facts of the instant case.
49. Following the decisions of the Hon'ble Supreme Court in the case of S.A. Vengadamma and Ors. v. Jitendra P. Vora and Anr., as well as in the case of Bharat Sales Ltd. v. Life Insurance Corporation of India , this Court holds that the defendant No. 1 failed to discharge his duty by not proving that there was no subletting in spite of his shifting to his Santoshpur residence.
50. Thus, when it is found that the tenant had given possession of the tenanted premises to his brother and shifted his residence to another premises without intention to return, this Court has no other alternative but to hold that subletting has been duly proved in the instant case by following the decision of the Hon'ble Supreme Court in the case of Bhairab Chandra v.. Ranadhir Chandra as well as in case of S.A. Vengadamma and Ors. v. Jttendra P. Vora and Anr. (supra).
51. In the facts of the instant case, the Court holds that the Judgment and decree of the learned first Appellate Court cannot be sustained. Thus, the decree of the learned first Appellate Court is set aside. The Judgment and decree of the learned trial Judge is thus restored.
Accordingly, this appeal stands allowed.
The defendants are directed to vacate the suit property and to hand over vacant and peaceful possession thereof to the plaintiff/appellant within a period of two months from date failing which liberty is given to the plaintiff/appellant to recover vacant possession of the suit premises by executing the decree.
Let the lower Court records be sent down to the learned Court below forthwith.