Calcutta High Court (Appellete Side)
Smt. Sukumari Dass & Ors vs Musst. Saleha Khatoon & Ors on 20 May, 2010
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1
2010 S.A. NO. 209 OF 2007
Smt. Sukumari Dass & Ors.
- versus -
Musst. Saleha Khatoon & Ors.
Mr. Bidyut Kumar Banerjee,
Mr. Dilip Chatterjee,
Mr. S. Bhattacharya,
Mr. S. Chatterjee
.... For the Appellants.
Mr. Sudhish Dasgupta,
Mr. Harish Tandon,
Mr. P. Agarwal
.... For the Respondents.
TAPAN KUMAR DUTT, J.
This Court has heard the Learned Counsels for the respective parties. The plaintiffs/respondents filed a suit being T.S. No. 349 of 1981 in the Court of the Learned 3rd Munsif at Alipore. It appears that the plaint of the said suit has been amended and the suit has also been subsequently re-numbered as Title Suit No. 123 of 1995 in the Court of the Learned Civil Judge (Junior Division), 1st Additional Court, Alipore. The plaintiffs filed the said suit for a decree for ejectment and recovery of possession of the 'A' Schedule property to the plaint and also for recovery of possession of the 'B' Schedule property to the 2 plaint and for a declaration that the construction and additions and alterations and conversions beyond the tenanted portion as mentioned in Schedule 'C' of the plaint are unauthorised and are liable to be demolished. The plaintiffs/respondents also prayed for mandatory injunction directing the defendants to demolish the 'C' and 'D' Schedule property to the plaint and for permanent injunction for restraining the defendants from carrying out further constructions at premises No.55, Gobindapur Road (the suit holding).
The plaint case, briefly, is that the original defendant was a tenant in respect of the aforesaid 'A' Schedule property at 55, Gobindapur Road, Calcutta - 45 at a rent of Rs.130/- per month payable according to English calendar month. The plaintiffs' further case is that initially the defendant was inducted in the suit premises at a rental of Rs.25/- per month which was subsequently raised from time to time when the defendant was allowed to occupy further room. The suit property belonged to the plaintiffs' mother, Fatema Begum, and the original defendant was inducted by the husband of Fatema Begum i.e. Dr. A.M.F. Wahhab and also by A. Wahhab (original plaintiff No.1). The plaintiffs alleged that the rent used to be realised mostly by A. Wahhab and the property was orally gifted by oral Heba by Mussamat Fatema Begum to her two sons i.e. the plaintiffs and the names of the plaintiffs were recorded as sole owners in the records of Calcutta Corporation. According to the plaintiffs, the original defendant was inducted as a monthly premises tenant in respect of the suit premises on 9th Sepetmber, 1946 on the basis of a letter of tenancy dated 9th 3 September, 1946 duly signed by the original defendant. It is the further case of the plaintiffs that at a point of time the suit property was recorded as holding No.54, Rahim Ostagar Road, which was subsequently changed into different holding Numbers and ultimately it became 55, Gobindapur Road. The plaintiffs alleged that the defendant defaulted in making payment of rents from December, 1978 and has also sub-let the 'A' Schedule property to different persons without any consent from the plaintiffs. The plaintiffs have also alleged that the defendant without any consent from the plaintiffs made unauthorised constructions in December, 1978 and by breaking open lock and key entered into one pucca room mentioned in 'B' Schedule to the plaint which was lying in the khas possession of the plaintiffs. The plaintiffs have alleged that the defendant has let out the unauthorised construction to several persons and he has caused waste and damage to the suit properties and has committed acts contrary to the provisions of Section 108(m) (o) and (p) of the Transfer of Property Act. The plaintiffs have alleged that they issued ejectment notice to the original defendant but the said defendant did not quit and hence the said suit was filed by the plaintiffs.
The original defendant entered appearance in the suit and filed written statement. The defendant denied the relationship of landlord and tenant in between the parties and also took the stand that there was never any occasion for the defendant to make payment of rent to the plaintiffs. The defendant's case was that the defendant has acquired a good title over the suit property by way of 4 adverse possession. The defendant denied the material allegations made in the plaint. The defendant's case was that the defendant came from East Bengal to West Bengal in 1939 and began to earn his livelihood as a washerman living in different tenanted houses in Gobindapur area and the said defendant as a washerman who used to wash the clothes of the members of the plaintiffs' father's family. The defendant stated in the written statement that the plaintiffs and the other family members of the plaintiffs in the year 1944-45 used to live in the premises No.55, Gobindapur Road but in August, 1946 there was tremendous disturbance in Calcutta resulting in communal riot and the plaintiffs and other family members of the plaintiffs fled away from their aforesaid residence and the entire house along with other contiguous land in the said premises No.55, Gobindapur Road was lying vacant. The defendant's case is that the defendant on coming to know of the said vacant house forcibly entered into the suit property at 55, Gobindapur Road by breaking open the lock of the three rooms of the pucca one storeyed building and also took possession of the three golpata ghars and cow-shed, and since immediately after the riot in 1946 the said defendant with his family members have been possessing the suit property in exercise of his own right, title and interest and the defendant declared hostile title in respect of the suit properties within the knowledge of the plaintiffs and all interested persons.
The suit came up for hearing and the parties have adduced their respective evidence and the Learned Trial Court by judgement and decree dated 31st 5 January, 2002 dismissed the said suit by finding inter alia that the plaintiffs have been unable to establish that they are the owners of premises No. 55, Gobindapur Road and that the plaintiffs have failed to prove the signature appearing on Ext. 3 is that of Kalimohan Das. The Learned Trial Court found that the said Kalimohan Das was a washerman who used to wash the clothes of the plaintiffs and their family members and it proceeded on the basis that it is not believable that Dr. Wahhab would induct one Hindu washerman to stay with him enjoying common varandah and common facilities. The Learned Trial Court found that the signature of Kalimohan Das on Ext. 1 has not been proved and there was no relationship of landlord and tenant between the parties. The Learned Trial Court found that the suit is not maintainable. With regard to the issues concerning the default in payment of rent, notice of suit and violation of clauses (m) (o) and (p) of Section 108 of T.P. Act, the Learned Trial Court decided such issues against the plaintiffs as there was no relationship of landlord and tenant between the parties. With regard to the defendant's plea of adverse possession the Learned Trial Court found that such plea was not in the form of counter-claim and the Learned Trial Court did not make any finding with regard to such plea of adverse possession.
The plaintiffs filed Title Appeal No. 134 of 2002 which was placed before the Learned 4th Civil Judge (Senior Division), Alipore and the Learned Lower Appellate Court by the impugned judgement and decree has allowed the said appeal and set aside the judgement and decree passed by the Learned Trial Court. The Learned Lower Appellate Court has decreed that the plaintiffs do get 6 a decree for eviction of tenant and recovery of khas possession of the suit property by evicting the defendants therefrom and the defendants were directed to vacate the suit property and to deliver vacant possession thereof in favour of the plaintiffs within a stipulated period of time failing which the plaintiffs would be at liberty to evict the defendants by putting the decree into execution.
The Learned Lower Appellate Court found that merely because some declarations have been sought for in an eviction suit such suit cannot be treated to be not maintainable. The Learned Lower Appellate Court found that the Corporation Tax receipts show that Abdul Wahhab and AZC Wahhab are the owners of the premises No.55, Gobindapur Road and Kalimohan Das and others are the occupiers in respect of the suit property. The Learned Lower Appellate Court was also of the view that since the defendants had claimed adverse possession against the plaintiffs, there is an admission on the part of the defendants with regard to the title of the plaintiffs over 55, Gobindapur Road. The Learned Lower Appellate Court found from the Ext. 7 series that the plaintiffs paid tax for 55, Gobindapur Road in the 1950s, 1960s, 1970s and 1980s and the previous bills in respect of the said premises No.55, Gobindapur Road were in the name of Fatema Begum who owned 2 bigha 10 cottahs of garden area of plot No. 54/59 in 1937. The Learned Lower Appellate Court took note of the fact that the Learned Trial Court also observed that Ext.16 shows that Fatema Begum was owner of 54/59 Gobindapur Road which was formerly a part of Rahim Ostagar Road. The Learned Lower Appellate Court came to the 7 conclusion that Gobindapur Road was previously a part of Rahim Ostagar Road and that frequent change of Holding Number on G.R. Assessment of the Municipality is a regular affair and it is nobody's case that Fatema Begum had more than one dwelling house and that it is an admitted fact that 55, Gobindapur Road was the only house owned by Fatema Bibi. According to the Learned Lower Appellate Court Ext. 7 series read with Ext. 1 clearly established the landlord and tenant relationship between the parties in respect of the suit property and the finding of the Learned Trial Court in this regard i.e. issue No.5 was incorrect. The Learned Lower Appellate Court was of the view that Ext. 1, the tenancy agreement, being a 30 years old documents came from proper custody and mere denial by the DW-1 of the signatures of Kalimohan Das for such document is not sufficient discharge of onus. The Learned Lower Appellate Court found that the DW-1 refused to recognize the signature of Kalimohan Das in the written statement and thus the written statement itself loses its foundation. The Learned Lower Appellate Court also took note of the fact that the DW-1 stated in her evidence that the defendant was inducted in the suit premises at a time when Dr. Wahhab was the owner of the suit premises. Thus, the Learned Lower Appellate Court concluded that the DW-1 did not make any positive denial of the tenancy. The Learned Lower Appellate Court also observed that DW-1 in her evidence denied that her husband was ever a washerman of the plaintiffs' family while the original defendant had stated that he was a washerman in the plaintiffs' family. The Learned Lower Appellate Court also took note of the fact that DW-1 repeatedly stated that the defendant came to the suit 8 property at such a point of time that it would indicate that it was the year 1946 and the date of the tenancy agreement also correspond to the said year. The Learned Lower Appellate Court took note of the evidence of DW-2 and found that the said DW-2 virtually admitted the landlord-tenant relationship as he has stated that the original defendant had told him that he had first come to the suit property as a tenant.
The Learned Lower Appellate Court found that there was a relationship of landlord and tenant between the parties and the defendant did not pay any rent to the plaintiff for which the defendant is definitely a defaulter. The Learned Lower Appellate Court found that a valid and legal notice was served upon the defendant and the defendants have made addition and alteration in the suit premises and have made construction without the permission of the owners for the purpose of inducting tenants therein. The Learned Lower Appellate Court found that the defendant is guilty of violating of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. The Learned Lower Appellate Court also found that the defendants have failed to establish their alleged case of adverse possession. The Learned Lower Appellate Court allowed the said Title Appeal by setting aside the judgement and decree passed by the Learned Trial Court. The Learned Lower Appellate Court granted a decree in favour of the plaintiffs for eviction of the defendants from, and recovery of possession of, the suit property and the defendants were directed to vacate and deliver possession of the suit property in favour of the plaintiffs within a stipulated period of time failing which 9 the plaintiffs would be at liberty to evict the defendants by putting the decree into execution.
That challenging the aforesaid judgement and decree passed by the Learned Lower Appellate Court the defendants have filed the present appeal being S.A. 209 of 2007.
It appears from records that an Hon'ble Division Bench of this court by order dated 21.08.2006 was pleased to admit the appeal on the following grounds:
(1) Whether the Learned Lower Appellate Court committed substantial error in law in reversing the judgement and decree passed by the Learned Trial Court, (2) Whether the Learned Lower Appellate Court committed substantial error in law in deciding the question of title of both the plaintiffs and the defendants in respect of the suit property.
When this appeal came up for final hearing the Learned Senior Advocate for the appellants had submitted that the appeal is required to be heard also on certain additional grounds and as such the following additional grounds were formulated :
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(1) Whether or not the Learned Lower Appellate Court was legally justified in relying upon the Municipal Corporation Tax Receipts and other documents which are allegedly not documents of title while deciding the question of title of the plaintiffs in respect of the suit property. (2) Whether or not the Learned Lower Appellate Court was right in applying the provisions of Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956 in respect of the unauthorised constructions made by the defendants on the property which is allegedly outside the suit premises.
The Learned Senior Advocate for the appellant submitted that the Learned Lower Appellate Court could not have relied upon the Municipal Corporation Tax Receipts for deciding the question of title and there is no evidence of record as to how Fatema Bibi became the owner of the suit property and the plaintiffs failed to trace out their title to the suit property. According to the said Learned Advocate it is not permissible under the law to decide the question of title on the basis of C.S. Record of right or Municipal Corporation Tax Receipt. The said Learned Advocate referred to the additional written statement and submitted that the defendant denied the alleged ownership of Fatema Begum and has also denied that the defendant was inducted by Dr. A.M.F. Wahhab and A. Wahhab.
The Learned Senior Advocate for the appellant relied upon a decision reported at (1995) 3 Supreme Court Cases 426 (Nagar Palika, Jind - vs. - 11 Jagat Singh, Advocate) and referred to paragraph 11 of the said reports wherein the Hon'ble Supreme Court was pleased to observe inter alia "It has already been pointed out that the Court of appeal without considering the question whether the plaintiff-respondent had proved his title to the property in dispute proceeded to examine whether the said respondent was in possession thereof. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the respondent. The court of appeal never inquired or investigated that question which was at issue saying that the title of the plaintiff-respondent was admitted by the appellant. This was a serious error of record. The title and possession of the respondents had always been disputed by the appellant from the stage of the written statement. In this background, suit of the respondent could not have been decreed merely on the basis of entries in the revenue records during the pendency of the earlier suit filed in the year 1971. As such the cases relied upon on behalf of the respondent have no bearing on the facts of the present appeal. A substantial question of law was involved in the second appeal presented before the High Court against the judgement of the court of appeal and the High Court ought to have interfered and set aside the judgement of the court of appeal". However, the facts of the Nagar Palika's case (supra) were different from the facts of the present case in as much as in the present case the Learned Lower Appellate Court did decide the question of title of the plaintiffs in the suit. In the said Nagar Palika's case (supra) the court of appeal never inquired or investigated the question of title of the plaintiff and that was considered to be a serious error. However, the Hon'ble 12 Supreme Court was pleased to take note of another case (Chhote Khan vs. Mal Khan, A.I.R. 1954 Supreme Court 575) wherein it was said that entries in 'Jamabandis' fall within the purview of the records of right under Section 31 of the Punjab Land Revenue Act and as such there are presumed to be true until the contrary is proved.
The said Learned Senior Advocate referred to a decision reported at 2001(2) C.H.N. 687 (Ram Ashis Roy - vs. - Rabi Bhaduri & Anr.) and referred to paragraph 15 of the said reports wherein it was held by the Hon'ble Court that an entry in the municipal register cannot create title but should be treated as a piece of evidence of possession. It is now well-settled that an entry in the municipal register cannot create title but is only a piece of evidence of possession.
The Learned Senior Advocate for the appellant submitted that the counterfoil of rent receipts which were adduced in evidence did not bear the signature of the defendant and, therefore, such counter-foils do not have any evidentiary value and on the basis of such counter-foils relationship between the parties as landlord and tenant cannot be proved.
He referred to a decision reported at A.I.R. 1982 Supreme Court 127 (Idandas - vs. - Anant Ramchandra Phadke(dead)) and relied upon paragraph 6 of the said reports wherein the Hon'ble Supreme Court was pleased to observe "Reliance was placed by the District Judge on the counter-foil where the plaintiff 13 landlord tried to make out a case of monthly tenancy but the entry in the counter- foil being an admission in his own favour was not admissible against the appellant."
The Learned Counsel for the appellant submitted that the plaintiffs not being the inducting landlords and also not being the co-owner landlords in respect of the suit property the suit is not maintainable. The said Learned Counsel argued that if Fatema Bibi or her husband had filed the suit, the suit would have been maintainable subject to the provisions of Article 65 of the Limitation Act but the plaintiffs being the non-inducting landlords the suit is not maintainable.
The said Learned Counsel relied upon a decision reported at A.I.R. 1993 Calcutta 144 (Ratanlal Bansilal and others - vs. - Kishorilal Goenka and others) and drew the attention of this Court to paragraph 147 of the said reports. The said paragraph 147 is quoted as follows:-
"In the case before us also it has been proved that the two landlords who are co-plaintiffs are not the landlords with whom the contract of tenancy was entered into. It does not matter that one of the co-plaintiffs is a co-owner landlord. Since the other co-plaintiff is not a landlord, the suit cannot survive. Here the respondents-defendants do not admit the plaintiff No.1 as the co-owner and co-landlord.
The Learned Counsel for the appellants submitted that since the unauthorized constructions complained of by the plaintiffs is in respect of the 14 property situated outside the alleged tenancy of the original defendant, the plaintiffs cannot take the ground of violation of the provisions of Clauses (m), (o) and (p) of Section 108 of the T.P. Act. He has submitted that the unauthorized constructions alleged by the plaintiff pertain to the year 1978 and as such the defendants have perfected their title by adverse possession. In the present case even if it is assumed that alleged unauthorized construction was done in the year 1978, the suit was filed in the year 1981 and as such the suit was filed much before statutory period was over.
The said Learned Counsel further submitted that in the plaint the plaintiffs alleged that the defendant defaulted in payment of rent from December, 1978 but the Learned Lower Appellate Court did not come to a specific finding as to from when the defendants committed such default in payment of rent. It may be noted here that with regard to the issue of relationship of landlord and tenant between the parties the Learned Lower Appellate Court found such issue in favour of the plaintiffs i.e. there existed a relationship of landlord and tenant in between the parties, and the Learned Lower Appellate Court also came to the finding that the defendant did not pay any rent to the plaintiff and as such the defendant is a defaulter in payment of rent.
The Learned Senior Counsel for the appellant submitted that the judgement of the Learned Lower Appellate Court should be set aside. 15
The Learned Senior Counsel appearing on behalf of the respondents submitted that even if the records of right are not documents of title as such but a presumption is arises. The Learned Senior Counsel for the respondent submitted that the name of Fatema Bibi and A.M.F. Wahhab have been recorded in the C.S. record of right and a presumption is raised in favour of such persons even though such presumption is rebuttable. The said Learned Counsel referred to Section 103B (5) of the Bengal Tenancy Act, 1885 wherein it has been stipulated that every entry in a record of right finally published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect.
The said Learned Senior Counsel referred to a judgement reported in 60 C.W.N. 793 (Pankajini Debi and ors. - vs. - Sudhir Dutta and ors.) wherein an Hon'ble Division Bench of this Court was pleased to hold that the settlement record is not a document of title and it does not create or extinguish title to land but at the most, it may be relevant as some evidence of title to the recorded plots of lands and may raise a presumption of title by virtue of the statutory presumption of correctness attaching to its entries under section 103B (5) of the Bengal Tenancy Act.
The Learned Senior Counsel for the respondents referred to a decision reported at A.I.R. 1966 Supreme Court 605 (Ambika Prasad Thakur and others etc. - vs. - Ram Ekbal Rai (dead) by his legal representatives and others etc.). In the said reports the Hon'ble Court was pleased to observe that if a thing or a 16 state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn.
The Learned Senior Counsel for the respondents referred to a decision reported at (2003) 8 Supreme Court Cases 752 (R.V.E. Venkatachala Gounder
- vs. - Arulmigu Viswesaraswami & V.P. Temple and another). In paragraph 26 of the said reports the Hon'ble Court held that an entry in the municipal record is not evidence of title and such entry shows the person who was held liable to pay the rates and taxes to the municipality and such entry may also, depending on the scope of the provision contemplating such entry, constitute evidence of the person recorded being in possession of the property. In paragraph 30 of the said reports the Hon'ble Court found that the trial court and the first appellate court had noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too had no proof of his title much less even an insignia of title. The Hon'ble Court held that in a civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with the plaintiff would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff's burden of proof can safely be deemed to have been discharged. The said Learned Counsel referred to a copy of the written statement and submitted that the defendants have admitted that the plaintiffs' family lived at 55, 17 Gobindapur Road in the year 1944-45 and the original defendant was a washerman who used to wash the clothes of the members of the plaintiffs' family. According to the said Learned Counsel, the defendants have admitted the ownership of the plaintiffs in respect of the suit property.
The said Learned Counsel referred to the evidence of D.W.1 who is the wife of the original defendant. The D.W.1 stated in her evidence that after three years from their coming to Calcutta they were inducted in the suit premises and at that time Dr. Wahhab was the owner of the suit premises. The said D.W.1 further stated that by an application of force and by using bamboo sticks etc. the defendants drove out the owners from the suit property. The said witness further stated that the names of the owners of the suit property are recorded in the Assessment Register of the Calcutta Municipal Corporation. The said D.W.1 further stated that the owners of the suit property make payment of taxes in respect of such property to the Municipal Corporation. The said Learned Counsel referred to the evidence of D.W.2 who stated that he new Kalimohan Babu and that he came to learn from Kalimohan Babu that Kalimohon Babu was inducted as a tenant in the suit property by Dr. Wahhab. The said Learned Counsel submitted that it will appear from Ext.16 that Gobindapur Road was formally a part of Rahim Ostagar Road. The said Learned Senior Advocate referred to that part of the evidence of the D.W.1 where the said D.W.1 stated that she cannot say whose signatures are appearing on the original written statement when the signatures of Kalimohan Das in the original written 18 statement were shown to the said witness. The said Learned Senior Advocate argued that if the D.W.1 has refused to identify the signatures of Kalimohan Das in the written statement then there cannot be any value in the statement of such witness when she stated that the signature on Ext.3 is not that of Kalimohan Das. It is interesting to note that the D.W.1 has also stated in her evidence that she can identify her husband's signature on seeing the same. In such a case since the said D.W.1 has stated in her evidence that she cannot say whose signature are there on the original written statement, the written statement itself loses its value and therefore a question may arise as to whether or not any reliance can be placed on such written statement. The Learned Senior Counsel for the respondents submitted that suit filed by the plaintiffs/respondents is a comprehensive suit and it includes the prayer for recovery of possession of the tenanted portion and also the portion into which the defendants have trespassed.
The Learned Counsel for the respondents referred to a decision reported at A.I.R. 1964 Supreme Court 1254 (S.M. Karim - vs. - Mst. Bibi Sakina) wherein the Hon'ble Court was pleased to observe that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. The Hon'ble Court was further pleased to observe that long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The Hon'ble Court was pleased to observe that a mere suggestion in the relief clause that there was an 19 uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea.
The Learned Senior advocate for the respondents referred to a decision reported at A.I.R. 1976 Calcutta 55 (Premendu Bhusan Mondal - vs. - Sripati Ranjan Chakravarty). In paragraph 6 of the said reports the Hon'ble Court held that when a person in unauthorised occupation admits the title of the true owner his possession of the property is not adverse to the true owner, but it should be deemed to be on his behalf. It will appear from paragraph 7 of the said reports that the defendant in the said reported case placed reliance on the fact of taking electric connection in the disputed house and payment of the Municipal tax by him. The Hon'ble Court held that taking of electric connection or payment of Municipal tax does not go to prove adverse possession of the defendant.
The said Learned Senior Counsel cited another decision reported at (2005) 11 Supreme Court Cases 549 (Parvati and others - vs. - S.R.S. Parvatrao Desai and another) in support of his contention that the question whether a title has been perfected by adverse possession is not a substantial question of law. In the said reported case the Trial Court held that the defendants had perfected the title by way of adverse possession. The first appellate court set aside the judgement on the Trial Court and held that the defendants were put in possession of the suit property as licensees. The High Court, in appeal, has affirmed the finding recorded by the first appellate court. The Hon'ble Supreme Court was pleased to observe that the High Court was right in holding that a substantial question of 20 law did not arise in the facts and circumstances of the case and the second appeal was rightly dismissed.
The said Learned Senior Advocate referred to another judgement reported at (2000) 10 Supreme Court Cases 244 (M. Nadar Kesavan Nadar - vs. - Narayanan Nadar Kunjan Nadar) in support of his submission that the finding of fact arrived at by the Learned first appellate court should not be disturbed in the second appeal.
The Learned Senior advocate for the respondent cited another decision reported at (2008) 15 Supreme Court Cases 150 (Kurella Naga Druva Vudaya Bhaskara Rao - vs. - Galla Jani Kamma Alias Nacharamma) in support of his contention that a party pleading adverse possession has to show that his possession was hostile to the title and possession of the true owner but in the present case the appellants have taken the stand that the respondents are not the owners of the suit property and thus the plea of adverse possession is not tenable.
The said Learned Senior advocate cited another decision reported at (2009) 10 Supreme Court Cases 750 (Transmarine Corporation and others - vs. - Zensar Technologies Limited and others) in support of his contention that in a suit for eviction in which relationship between the parties has been admitted, it would not be open to the tenant to deny the title of the landlords. In this connection he has referred to the evidence of D.W.1 wherein the D.W.1 stated 21 that the original defendant and his family were inducted in the suit premises and at that point of time Dr. Wahhab was the owner of the suit premises. The Learned Senior advocate for the respondents submitted that the Ext.1/Ext.3 was filed in February, 1983 by firisti and it was tendered in evidence in July 1983 i.e. prior to the death of Kalimohan Das who died in September, 1983. The said Learned Senior advocate submitted that if the plea of adverse possession is disbelieved then the illegal acts done by the defendants like unauthorised construction and letting out portion of the suit property become admitted. The said Learned Senior advocate further submitted that the arguments made by the Learned counsel for the appellant with regard to the additional ground No.2, as already indicated above, is not tenable because such argument was not made and such point was not raised before the Learned Courts below and also in view of the fact that the appellants have pleaded adverse possession and not any particular tenancy. According to the said Learned Senior advocate for the respondents since the appellants did not plead any particular area of tenancy, the appellants cannot make any allegation that certain constructions were raised beyond any tenanted area.
Having heard the Learned Counsels for the respective parties it will appear that one of the points raised by the Learned Counsel for the appellants is that the Learned Lower Appellate Court could not have relied upon the Municipal Corporation tax receipts and/or the C.S. Records of right to decide the question of title. The said Learned Counsel has placed reliance upon the additional written statement as already noted above. In this connection the Learned 22 Counsel for the respondents has submitted that the name of Fatema Bibi and A.M.F. Wahhab have been recorded in the C.S. record of right and a presumption is raised in favour of such persons even though such presumption is rebuttable. A reference was made to Section 103B(5) of the Bengal Tenancy Act, 1885 as already indicated above. The said Learned Counsel referred to Pankajini Debi's case (supra) in support of his submission that the entries in the settlement records may be relevant as some evidence of title and may raise a presumption of title by virtue of the statutory presumption of correctness attaching to its entries under Section 103B (5) of the Bengal Tenancy Act. In Ambika Prasad Thakur's case (supra) the Hon'ble Court observed that if a thing or state of things is shown to exist, an inference of its continuity within a resonably proximate time both forwards and backwards may sometimes be drawn. The said Learned Counsel cited R.V.E. Venkatachala Gounder's case (supra), which has already been discussed above, wherefrom it appears that the Hon'ble Court held in the said reports that in a Civil case the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with the plaintiff would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff's burden of proof can safely be deemed to have been discharged. In the said reports it has also been held that the entry in the Municipal record is not evidence of title but such entry may also, depending on the scope of the provisions contemplating such entry, constitute evidence of the person recorded being in possession of the property. As already noted above the Learned Counsel 23 for the respondents referred to a copy of the written statement wherein the defendants stated that the plaintiffs' parents with the plaintiffs, two other brothers and other members of their family used to live in the year 1944-45 in the premises No.55, Gobindapur Road and the original defendant was a washerman who used to wash the clothes of the members of the plaintiffs' father's family. The Nagar Palika's case (supra), as cited by the Learned Counsel by the appellant has already been discussed above and it has been found that the facts of Nagar Palika's case (supra) were different from the facts of the present case. In such circumstances, the said Nagar Palika's case (supra) cannot be of any assistance to the appellants. The Learned Counsel for the respondents referred to the evidence of D.W.1 who is the wife of the original defendant as already noted above. The D.W.1 stated in her evidence that after three years from their coming to Calcutta they were inducted in the suit premises and at that time Dr. Wahhab was the owner of the suit premises. The said D.W.1 has also stated that by an application of force and by using bamboo sticks etc. the defendants drove out the owners from the suit property. The said witness further stated that the names of the owners of the suit property are recorded in the Assessment Register of the Calcutta Municipal Corporation and such owners make payment of taxes in respect of such property. Thus it will appear that the D.W.1 has clearly admitted the ownership of the plaintiffs in respect of the suit property. In this context whatever might have been said by the defendant against the plaintiffs in the written statement in respect of the plaintiffs' title to the suit property cannot come to the aid of the defendant in view of the clear 24 admission made by the D.W.1 in her evidence. The D.W.2 also stated in evidence that he came to learn from the original defendant that the original defendant was inducted as a tenant in the suit property by Dr. Wahhab. Another aspect of the matter has to be taken into consideration. The Learned Counsel for the respondents has rightly argued that since the D.W.1 in her evidence has refused to identify the signatures of the original defendant in the written statement, no reliance can be placed on the evidence of the said witness to the effect that the signature on Ext.3 is not that of the original defendant, Kalimohan Das. It appears that the original defendant was contesting the suit by filing a written statement and no dispute was ever raised on behalf of the defendants with regard to the authenticity of the signatures of Kalimohan Das on the written statement and yet the D.W.1 (wife of Kalimohan Das) refused to identify such signatures. The Learned Lower Appellate Court took into consideration the evidence of the D.W.1, as noted above, and also the Ext.1/Ext.3 being the tenancy agreement which came from proper custody. The Learned Lower Appellate Court also considered the entries in the assessment records of the Municipality concerned and was quite justified in coming to the conclusion that there was relationship of landlord and tenant in between the parties. In view of the evidence of D.W.1, has already noted above, no importance can be given to the D.W.1's denial of the signatures of Kalimohan Das on the tenancy agreement. Thus, considering the entire facts and circumstances of the case and the materials on record and also the said R.V.E. Venkatachala's case (supra) it has to be held that the plaintiffs are the owners of the suit property and that original defendant was inducted as a 25 tenant in the suit property. Thus, the point raised by the Learned Counsel for the appellants that the Learned Lower Appellate Court was not justified in relying upon the Municipal Corporation tax receipt and the records of right while deciding the question of title is untenable in the facts and circumstances of the present case. It is not only the Municipal records and/or record of right which were considered in the present case but also the other materials on record including the oral evidence of D.W.1 were taken into consideration by the Learned Lower Appellate Court while deciding the question of title of the plaintiffs in respect of the suit property.
The next point raised by the Learned Senior Advocate for the appellants was that the learned lower appellate court was not justified in applying the provisions of Section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956 in respect of the constructions made by the defendants on the property which is allegedly outside the suit properties. According to the said Learned Counsel since the plaintiffs have alleged that the defendants have made unauthorised constructions outside the alleged tenancy of the defendants, the plaintiffs cannot take the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. The Learned Lower Appellate Court has found that admittedly the defendants have made addition and alteration in the suit premises and admittedly they have made constructions without permission of the owners (i.e. the plaintiffs) to induct tenants therein. Thus, the defendants have trespassed into portions of the suit holding which are beyond the demised premises and have made constructions thereon. Thus, the defendants have also 26 made themselves liable to be evicted from those portions of the suit holding into which they have trespassed and made unauthorised constructions thereon. In course of eviction proceedings against a tenant if it is found that the tenant concerned has trespassed into other portions of the suit holding which lie outside the demised premises and has made unauthorised constructions thereon, a decree for eviction can also be passed in respect of trespassed area provided there are proper pleadings and evidence in support of such case. It is not necessary to relegate a plaintiff to another suit for such purpose. In the present case it will appear from the evidence of D.W.1 that substantial pucca constructions were made by the original defendant and/or his wife (D.W.1) in the suit holding and the same were let out to strangers. Pleadings regarding unauthorised constructions and illegal subletting have also been made by the plaintiffs. Thus, the defendants/appellants are also liable to be evicted on the ground of trespass and unauthorised constructions.
The point raised by the Learned Counsel for the appellants that the plaintiffs allegedly not being the inducting landlords and also not being the co- owner-landlords in respect of the suit property, the suit is not maintainable, was not raised in either of the Courts below. That apart, in this case the D.W.1 has admitted in her evidence that when the original defendant was inducted in the suit premises Dr. Wahhab was the owner of the suit premises and she does not know as to whether Dr. A. Wahab and A.Z.L. Wahab became the owner of the suit property after Fatema Bibi. The evidence on the part of the defendants 27 would indicate that they have admitted the ownership of the plaintiffs and their predecessor-in-interest in respect of the suit property. The decision cited by the Learned Counsel for the appellants cannot be applied to the facts and circumstances of the present case in view of the aforesaid fact that the ownership of the plaintiffs and/or their predecessor-in-interest have been admitted by the defendants/appellants. In the said reported case the defendant not admit that the plaintiff No.1 in the said reported case was the co-owner and/or the co- landlord. Thus the aforesaid point raised by the Learned Counsel for the defendant/appellant is also without any basis. The question of relying upon the counter foil of any rent receipt is not material in the present case in view of the fact that the D.Ws. 1 and 2 have admitted that the plaintiffs and/or their predecessor-in-interest are/were the owners of the property in dispute and the original defendant was inducted in the suit property by the Wahabs.
The Learned Lower Appellate Court was also right in holding that the defendant is a defaulter in payment of rent as the original defendant claimed to have acquired title in respect of the suit property by way of adverse possession and the original defendant could not prove by producing any rent receipt that they did not default in making payment of rents.
Even though the defendant/appellant claimed to have acquired absolute title by way of adverse possession the Learned Trial Court did not come to any finding that the defendant's claim has any basis or that the defendants have proved their allegations regarding adverse possession. It appears that the 28 defendants did not file any cross-objection and/or cross-appeal with regard to the point of adverse possession and the defendants have allowed the matter to stand as it was after the disposal of the suit vis-à-vis the point regarding adverse possession. From the evidence on record, particularly, the evidence of the defendants' witnesses, as indicated above, it will appear that the defendants could not at all prove that their possession ever became adverse in respect of the suit properties. In the present case, the defendants' witnesses have admitted the title of the plaintiffs and if the ratio of Premendu Bushan Mondal's case (supra) is applied, it will appear that the possession of the defendants in respect of the suit property was never adverse to that of the plaintiffs.
In the present case, the relationship between the parties have been admitted by the defendants' witnesses, as already indicated above, and it would not be open to the defendants to deny the title of the plaintiffs/respondents. In this connection the Transmarine Corporation's case (supra) may be referred to.
The Learned Lower Appellate Court has found that Gobindapur Road was formerly a part of Rahim Ostagar Road and such finding is a finding of fact which can hardly be challenged in a Second Appeal as a substantial question of law.
In view of the discussions made above, this Court does not find any merit in the present Second Appeal which is, accordingly, dismissed. 29
The judgement and decree of the Learned Lower Appellate Court is affirmed, subject to the only modification that the defendants/ appellants are granted two months time from this date to vacate the suit property and deliver vacant possession thereof in favour of the plaintiffs/ respondents failing which the plaintiffs/ respondents will be at liberty to put the decree into execution.
There will, however, be no order as to costs.
Urgent Xerox certified copy of this judgement, if applied for, shall be given to the parties upon compliance of all necessary formalities.
( TAPAN KUMAR DUTT, J. )