Calcutta High Court (Appellete Side)
Madhu Sudan Das vs Dilip Dutta & Ors on 2 November, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
2.11.2016
Item No. 112
Court No. 14
ac
F.A.T. 378 of 2015
(CAN 11262 of 2015)
Madhu Sudan Das
-versus-
Dilip Dutta & Ors.
Mr. Ranjit Roy,
Mr. Ratan Lal Shaw.
... For the Appellant/Petitioner.
Mr. Abhijit Roy,
Mr. Asok Sarkar,
Ms. Rofat J. Ekram.
... For the Respondent No. 1.
Re : CAN 11262 of 2015.
This is a defective appeal. Defects are notified in the report of the Stamp Reporter. However, the defect is curable.
On the prayer of the learned advocate of the appellant, we permit the learned advocate of the appellant to rectify the defect in the memorandum of appeal, in the light of the report of the Stamp Reporter.
The plaintiff has filed a suit for declaration and injunction. He claims that originally his father, namely, Hiralal Das, since deceased, was inducted as a tenant in respect of the suit property by the erstwhile owner thereof. On the death of Hiralal Das, his wife inherited the suit property. He further claims that on the death of the widow of Hiralal Das, Kartick Chandra Das, being the elder son of Hiralal Das being the Karta of the Hindu Joint Family was accepted as a tenant in respect of the suit property. The plaintiff is the brother of Kartick Chandra Das. He, thus, claims that he being a member of the Hindu joint family is also a tenant in respect of the suit property. Kartick Chandra Das died and on his death, the plaintiff alongwith the other family members, namely, the defendant nos. 2 & 3 became the tenant of the suit premises. He, thus, claims that the eviction decree which was passed against the defendant nos. 2 & 3 being the legal heirs of Kartick Chandra Das in Ejectment Suit No. 217 of 2004-E is not binding upon the plaintiff. He, further, alleges that even though the plaintiff was a tenant in respect of the suit premises, he was not even impleaded as a party in the said ejectment suit. He, thus, claims that the decree which was passed in the said ejectment suit is a collusive decree which according to him cannot be executed for evicting the plaintiff from the suit premises.
The defendant no. 1 being the transferee landlord contested the said suit by filing written statement denying the material allegations made out by the plaintiff in the plaint. He claimed that Kartick Chandra Das was inducted as a tenant in the suit premises. He, further, claimed that neither his father, nor his mother, was ever inducted as a tenant in the suit premises. He, thus, claimed that on the death of the said Kartick Chandra Das, the tenancy was inherited by his heirs, namely, the defendant nos. 2 & 3 being the wife and son of the pre-deceased son of Kartick Chandra Das. He, further, claimed that since the plaintiff was never recognised as tenant in the suit premises, he was not impleaded as a party in the said suit.
The parties led evidence in support of their respective claims for the said suit.
The learned Trial Judge after hearing the parties and after considering the materials on record was pleased to dismiss the said suit on contest by holding interalia that the plaintiff has failed to prove that his father was ever inducted as a tenant in respect of the suit premises. The claim of the plaintiff that his mother inherited the tenancy of Hiralal Das on his death was also disbelieved by the learned Trial Judge. The learned Trial Judge held that Kartick Chandra Das was inducted as a tenant in respect of the suit premises and on his death the defendant nos. 2 & 3 became the tenant of the suit premises, as the heirs and legal representatives of the said Kartick Chandra Das.
The learned Trial Judge, further, held that there is no privity of contract between the plaintiff and the defendant no. 1.
The learned Trial Judge, thus, held that the plaintiff has got no cause of action to file the suit against the defendant. Holding as such, the learned Trial Judge dismissed the said suit.
The legality of the said judgement and decree passed by the learned Trial Judge is under challenge in this appeal before this Court.
After filing this appeal, the instant application was taken out by the appellant praying for stay of execution of the decree passed in the eviction suit being Ejectment Suit No. 217/2004-E. Even no material has been produced before this Court to establish the plaintiff's claim that Hiralal Das was inducted as a tenant in the suit premises and on his death his widow inherited the tenancy in respect of the suit premises.
Since the plaintiff is unable to produce any evidence to convince this Court that either Hiralal Das or his widow became a tenant in respect of the suit premises, we cannot believe that the plaintiff being a member of the Hindu Joint Family became a tenant in respect of the said premises on the death of Hiralal Das. No document has been produced before this Court to establish that Kartick Chandra Das was the Karta of the Hindu joint family and the plaintiff was a member of the undivided Hindu joint family.
We, thus, disbelieve the plaintiff's claim that he being a member of the undivided Hindu joint family became a tenant in respect of the suit premises.
Such being the position, we decline to pass any order staying further proceeding of the execution case being Ejectment Execution Case No. 268 of 2006 pending before the learned 5th Bench, Small Causes Court at Calcutta.
The application for stay being CAN 11262 of 2015 is, thus, rejected.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) 1 7