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[Cites 10, Cited by 1]

Calcutta High Court

Shivani Properties Private Limited vs Rajeev Lochan on 25 January, 2018

Equivalent citations: AIRONLINE 2018 CAL 648

Author: Sahidullah Munshi

Bench: Sahidullah Munshi

                  IN THE HIGH COURT AT CALCUTTA

              ORDINARY ORIGINAL CIVIL JURISDICTION

                            ORIGINAL SIDE


                          C.S. No.223 of 2013
               SHIVANI PROPERTIES PRIVATE LIMITED
                                              ... Plaintiff

                                  -Versus-

                           RAJEEV LOCHAN

                                              ... Defendant



BEFORE:

THE HON'BLE JUSTICE SAHIDULLAH MUNSHI

January 25, 2018.



Mr. Ravi Kapoor,
Mr. K. K. Thakar,
Mr. Avinash Kankani
Mr. D. Ghosal,
Mrs. Mudika Khaitan

            ... for the plaintiff

Mr. Arijit Bardhan,
Mr. Ashish Shah,
Mr. Salman Hasan

            ... for the defendant



      The Court : This is a suit praying for a decree for eviction of

defendant from the suit premises and for khas possession as also for a

decree of mesne profit. The plaint case is as follows :-
       One Sumitra Devi Poddar was the tenant in respect of three

separate shop rooms measuring 191 Sq.ft. and 108 Sq.ft. for a

monthly rental of Rs.115/- for each of those two shops and measuring

150 Sq.ft. for a monthly rental of Rs.58/- per month payable according

to English calendar month. The said tenancies have been described in

Schedule 'W', 'X' and 'Y' respectively.


      The plaintiff as a private limited company (hereinafter referred to

as the "said company") is the landlord and owner of the suit premises

which was purchased by it under a registered deed of conveyance

dated 24th January, 1994 from one Smt. Dipali Mallik and the said

Dipali Mallik, by three letters dated 24th January, 1994, duly attorned

tenancy in respect of the shops. The said letter was duly received by

Smt. Sumitra Devi Poddar and the same was acknowledged by her.

Sometime in May, 2013, it came to the knowledge of the plaintiff that

the said Sumitra Devi Poddar left the suit premises permanently and

was not enjoying the same in any manner whatsoever. The defendant

was possessing the said three rooms illegally and was liable to be

evicted. There is no legal and/or contractual relationship between the

plaintiff and the defendant. Defendant is in occupation of the suit

premises without consent or approval of the plaintiff and, therefore,

the possession of the defendant is the possession of a trespasser. The

defendant is also not a tenant within the meaning of Section 2(g) of the

West Bengal Premises Tenancy Act, 1997.
       Further, the defendant is in illegal occupation of a privy at the

ground floor at the main gate of the said premises which comprised

approximately of 20 sq.ft. which is demarcated in blue in the sketch

plan annexed to the plaint and marked with the letter 'B' and

described in Schedule 'Z'.


      The defendant is liable to be evicted from the suit premises and

the plaintiff is entitled to vacant and peaceful possession of the suit

premises described in Schedules 'W', 'X', 'Y' and 'Z' and demarcated in

Annexures 'B' and 'C' respectively.


      Since the suit is for recovery of possession of four separate

rooms from the defendant, the plaintiff sought leave under Order II,

Rule 3 of the Code of Civil Procedure for uniting the causes of action in

respect of recovery of the said four rooms described in Schedules 'W',

'X', 'Y', 'Z' to avoid multiplicity of proceedings as according to the

plaintiff, the defendant is in possession of the said four rooms in the

said premises. Such leave was granted under Order II, Rule 3 of the

Code by this Court on 12th July, 2013.


      Defendant entered appearance and contested the suit by filing a

written statement which was presented on 20th August, 2013.

However, neither any counter-claim, nor any set off prayed for by the

defendant. It is the defendant's stand that he is not in exclusive

physical possession of the three rooms described in Schedules 'W', 'X',

'Y' appended to the plaint. He said that Sumitra Devi Poddar left for

heavenly abode on 27th May, 2012 leaving behind her daughters Smt.
 Rajmani Devi, Smt. Indu Devi and Smt. Usha Devi as her heirs and

legal representatives. The present defendant is the son of Smt. Usha

Devi. According to the defendant, prior to her death Sumitra Devi

Poddar was residing in the room on the terrace of the said premises

with the defendant and his mother. The father of the defendant having

expired, his mother was residing with the deceased Sumitra Devi

Poddar at the time of her death and that she was dependent upon the

deceased. The said Smt. Usha Devi is presently in occupation and in

possession of the aforesaid three rooms. According to the defendant,

plaintiff let out the said privy to the deceased Sumitra Devi Poddar on

an understanding that rent would be payable for the same at the rate

of Rs.115/- per month in cash in the name of the defendant.

According to the defendant, the said agreed monthly rent was paid to

the plaintiff month by month and every month in cash for quite some

time. Defendant was assured ofrent receipts in lieu of such payments

in due course but the plaintiff declined to do so on one pre-text or the

other. In spite of repeated request, plaintiff did not grant rent receipts

and, accordingly, under compelling circumstances, defendant had to

deposit the monthly rent, month by month and every month,

punctually and without fail with the Office of the Rent Controller at

Kolkata. The defendant further stated that Usha Devi had been

ordinarily residing at the portion of the suit property on the top floor

with the said Sumitra Devi Poddar at the time of her death and was

dependent on her. Further, the said Usha Devi does not own and

occupy any other residential premises. The rooms on the ground floor
 of the suit premises were being used by the deceased Sumitra Devi

Poddar   for   non-residential   purposes.   Owing   to   the   defendant

depositing monthly rent in respect of the privy on the ground floor at

the aforesaid premises with the Office of the Rent Controller, the

plaintiff declined to accept the monthly rent for the three rooms of

which Smt. Sumitra Devi Poddar, since deceased, who was the

monthly tenant and, accordingly, the said monthly rent was being

deposited with the Office of the Rent Controller at Kolkata, month by

month and every month punctually and without fail. According to the

defendant, the suit, as framed, is not maintainable. Question of

eviction does not arise. So also question of paying mesne profit to the

plaintiff does not arise. According to the defendant, there is no cause

of action for this suit and the plaint fails to disclose such cause.

According to the defendant, provisions of West Bengal Premises

Tenancy Act, 1997 would apply to the facts and circumstances of the

instant case and consequently, the protection afforded by the said

Statute would be squarely applicable in the present case.


      The following documents have been admitted into evidence,

particulars whereof are given below:-

      Plaintiff's Exhibits -

      1) Exhibit A - Deed of Conveyance dated 24th January, 1994

         between Smt. Dipali (Deepali) Mallik and Shivani Properties

         (P) Ltd.

      2) Exhibit B (collectively) - Three letters dated 24th January,

         1994 by Smt. Dipali Mallik to Smt. Sumitra Devi Poddar.
    Signature encircled in red pencil as Exhibit B1, B2, B3

   respectively.

3) Exhibit C - Electricity Bill (in original) for the month of

   October, 2004.

4) Exhibit D - PD 9 at page no.35 of Judges Brief of Documents

   prepared by the defendant.

5) Exhibit E - Letter dated 29th January, 2003 from Shivani

   Properties Pvt. Ltd. to Sumitra Devi Poddar.

6) Exhibit F - Extract of the Minutes of the Board of Directors

   held on 4th July, 2013 at 11 a.m.

7) Exhibit G - Certified True Copy of Deed of Conveyance dated

   26th February, 2010.



Defendant's Exhibits -

1) Exhibit 1 - Death certificate (in original) of Sumitra Devi

   issued on 14th June, 2012.

2) Exhibit 2 (Collectively) - (subject to objection) - Copy of letter

   issued by Smt. Usha Devi addressed to the Director of

   Rationing, West Bengal , Food and Supplies Department,

   received by the concerned authority on 28th August, 2012

   along with all its annexures.

3) Exhibit 3 (Collectively) - Rent Control challans (six in

   number).
       After hearing the parties this Court settled the issues by an

order dated 18th November, 2016. The following issues were framed :-

         1. Is the suit maintainable in its present form and/or in

            law?

         2. Is the defendant 'a tenant' within the meaning of

            'tenant' as envisaged under the West Bengal Premises

            Tenancy Act, 1997, if so, is the defendant entitled to

            the protection as available to the tenant under the

            provisions of the said Act?

         3. Whether the defendant is a trespasser in respect of the

            premises particularly mentioned in the Schedule 'W',

            'X', 'Y' and 'Z'?

         4. Whether the plaintiff is entitled to decree for eviction

            and recovery of possession against the defendant in

            respect of the suit premises as mentioned in the said

            schedule?

         5. To what relief or reliefs, if any, the plaintiff is

            entitled?



      Plaintiff has appeared before this Court and deposed in box in

support of the plaint case. For the sake of convenience Issue No. 1,

that is, "Is the suit maintainable in its present form and/or in

law?" is taken up first. According to the plaint case, the defendant is

the trespasser in respect of the suit premises and it is undisputed that

the defendant resides at the suit premises. He has been served with
 the summons at the suit premises. Therefore, if the plaintiff contends

that the defendant is in occupation of the suit premises without any

legal authority of the owner of the premises where he is residing

and/or in occupation, the plaintiff has a cause against the defendant

and such cause arose at the suit premises within the jurisdiction of

this Court. Looking at the valuation of the property, the suit is well

maintainable in the ordinary original civil jurisdiction of this Court

and, therefore, this issue is decided in favour of the plaintiff holding

that the suit is maintainable both in form and also in law. Issue No.1

is, accordingly, decided in favour of the plaintiff.


      Issue Nos. 2 and 3 are taken up together for decision. In fact,

Issue No.2 is connected with Issue No.3. If Issue No.2 is answered in

the positive, then there will be no necessity to decide Issue No.3 or the

other way round, that is, if the Issue No.3 is decided, perhaps no

decision on Issue No.2 is required. Let us first consider Issue No.2 -

"Is the defendant 'a tenant' within the meaning of 'tenant' as

envisaged under the West Bengal Premises Tenancy Act, 1997, if

so, is the defendant entitled to the protection as available to the

tenant under the provisions of the said Act?" In order to decide the

issue whether defendant is a tenant in respect of the suit premise or

not, let us first consider the evidence on record. The defendant Rajeev

Lochan appeared to depose in favour of the defence case. In his

deposition he stated that the suit property when purchased by the

plaintiff, Sumitra Devi Poddar was a tenant thereat and she died on
 27th May, 2012 leaving behind three daughters, namely, (i) Ms.

Rajmani Devi, (ii) Ms. Usha Devi and (iii) Ms. Indu Devi.


      On the question as to who had handed over the death certificate

of Sumitra Devi Poddar to the witness, he replied that the document

was handed over to him by his mother. The document was marked for

identification as the same was not proved. On the question whether

the witness intimated the factum of death of Sumitra Devi Poddar to

any authority, he replied that on 28th August, 2012 his mother

intimated the death of Sumitra Devi Poddar to the Director of

Rationing, West Bengal with its annexures, namely, death certificate of

Sumitra Devi Poddar, medical fitness certificate issued by Dr. Niranjan

Roychowdhury to Usha Devi on 27th July, 2012, a certificate issued by

Councilor of Kolkata Municipal Corporation, Ward No.45, certifying

that Usha Devi was residing at 5, Kiran Shankar Roy Road, Kolkata -

700001 on 26th July, 2012, affidavit affirmed before Notary Public

sworn by Usha Devi on 17th August, 2012, an affidavit before Notary

Public sworn by Rajmani Devi and Indu Devi on 17th August, 2012. He

replied that he got hold of the documents from his mother, Usha Devi.

He deposed that Sumitra Devi Poddar was his maternal grandmother.

From the evidence of the defendant it appears that he has tried to

establish a case that his mother was residing with Sumitra Devi

Poddar on the day of her death. The witness deposed that Sumitra

Devi Poddar used the ground floor and the terrace room for residential

purpose and the witness and his mother were residing with Sumitra

Devi Poddar at the time of her death. He has further deposed that his
 mother was dependent on Sumitra Devi Poddar at the time of her

death. Witness deposed that rent receipts in respect of shop room no.2

at the North gate and the room at the terrace of the suit premises were

being issued in the name of Sumitra Devi Poddar. So far the privy is

concerned, witness deposed that there was no rent receipt for using

the said premises but it was an understanding between Sumitra Devi

Poddar and the plaintiff that rent would be paid in cash. The witness

relied upon rent challans issued by Rent Controller to show that Usha

Devi was paying monthly rent of August, 2013 for the shop room no.2.

Another rent challan has been relied to show that Usha Devi is

depositing rent from August, 2013 in respect of shop room on the

ground floor. A rent challan has also been produced to show that Usha

Devi was paying rent for month of August, 2013 in respect of one room

on the roof. Similarly, he has also produced a rent challan to show

that Usha Devi was paying rent for the month of November, 2016 in

respect of shop no.2 at 5, Kiran Shankar Roy Road, Kolkata - 700001.


      The witness produced before this Court several rent challans to

show that Usha Devi was paying rent in respect of the suit premises.

These Rent Control challans have been marked Exhibit '3'. The whole

endeavour has been made by the witness is to establish that his

mother was residing with his grandmother and that he was residing

with his mother in the suit premises.


      It is the case of the defendant that his father pre-deceased his

maternal grandmother, Sumitra Devi Poddar, the recorded tenant.
 According to the defendant, after demise of his father, his mother

Usha Devi Poddar became dependent upon his maternal grandmother

and that his mother became a tenant in view of the provisions of the

West Bengal Premises Tenancy Act, 1997. Admittedly, the maternal

grandmother of the defendant died on 27th May, 2012 and his father

passed away after his said maternal grandmother. Initially, the

defendant avoided to disclose the date of death of his father as borne

out from the oral evidence, but, ultimately, from a protracted cross-

examination, he later on admitted that his father passed away after

his grandmother and in this respect, question nos.78-81, 115 and 160

in cross-examination are relevant.


      In regard to present issue is concerned, it is required to take

note of the provisions of Section 2(g) of the West Bengal Premises

Tenancy Act, 1997 which defines 'tenant'. According to the said

provision, 'tenant' means any person by whom or on whose account or

behalf the rent of the premises is or but for a special contract would be

payable. Under the said provision 'tenant' includes any person

continuing in possession even after termination of his tenancy and in

the event of death of such tenant, it also includes his spouse, son,

daughter, parent and widow of his predeceased son, who were

ordinarily residing with the tenant up to the date of death of the

tenants as the members of his family and were dependent on him and

who do not own or occupy any residential premises and in respect of

premises let out for non-residential purpose, his spouse, son,

daughter and parent who were ordinarily living with the tenant up to
 the date of his death as members of his family and were dependent on

him or a person authorized by the tenant who is in possession of such

premises. The provision also mentions that it shall not include any

person against whom any decree or order for eviction has been made

by a Court of competent jurisdiction. There are two proviso under the

said sub-section (g). The first proviso says that the time limit of five

years shall not apply to the spouse of the tenant who was ordinarily

living with the tenant up to his death as a member of his family and

was dependent on him and who does not own or occupy any

residential premises.


      The second proviso says that the son, daughter, parent or the

widow of the predeceased son of the tenant who were ordinarily

residing with the tenant in the said premises up to the date of death of

the tenant as a member of his family and was dependent on him and

who does not own or occupy any residential premises, shall have a

right of preference for tenancy in a fresh agreement in respect of such

premises.


      Therefore, on a plain reading of Section 2, sub-section (g) it

shows that following ingredients are to be satisfied to establish that

the defendant's mother Usha Devi is a tenant in respect of the

premises. Firstly, she has to show she was ordinarily living with the

tenant up to the date of death of the tenant as the member of her

family, secondly, Usha Devi has to show that she was dependent upon
 the deceased tenant, thirdly, that she does not own or occupy any

residential premises.


      In the cross-examination, when the witness was asked "Am I

correct   in   saying   that   the   address   given   here,   Jaiprakash,

Rambahadur Ajad Gally, Ward No.17. P.O. & Dist - Khagaria is the

residential address of your two aunts Rajmoni Devi and Indu Devi?"

The witness deposed - 'Yes'. In answer to question no.75 the witness

also deposed that originally, Sumitra Devi resided at 5, Kiran Shankar

Roy Road, Kolkata - 700001, but she also had house in Khagaria and

she actually died in Khagaria. This witness, when asked whether it

would be correct in saying that his father passed away at Flat

103/C/2, Flower Valley Complex, 493/B, G.T. Road, Shibpur, PIN -

711102, he deposed - 'Yes'. The witness also deposed that he was

living with him at the time of his demise. The witness was told in

question no.88 - "You are living with your 3 sisters, your wife, your

child and your mother at Flat 103/C/2, Flower Valley Complex,

493/B, G.T. Road, Shibpur, Pin - 711102, am I correct?" The witness

deposed - 'No'. Then again, he was asked - "Where are you living

presently?" The witness deposed - "I live with my mother and two

unmarried sisters at 5, Kiran Sankar Roy Road."


      From the evidence on record it does not appear that after the

death of Sumitra Devi, defendant's mother was residing at the suit

premises or that the said Usha Devi, the mother of the defendant, was

dependent on the deceased tenant, Sumitra Devi, nor has it been
 proved that the mother of the defendant ever approached the landlord

that after the demise of her mother tenancy devolved on her and she

should be recorded as tenant in respect of any of the suit premises.


      In the cross-examination, when the witness was asked whether

he produced any evidence in this proceeding to show that his mother

tendered rent to the plaintiff before depositing with the Rent Control,

the witness deposed "money order had been sent to the plaintiff." In

the next question, when he was asked "Have you disclosed any such

alleged money order which you sent to the plaintiff?" The witness

deposed - "I cannot remember but I have the receipt with me."


      The witness claims to be an independent tenant in respect of the

privy in question but that can also not be substantiated by the

evidence on record.


      From the above-referred discussion, it does not appear that the

defendant has been able to prove that his mother can qualify the

requisites of a tenant within the meaning of Section 2(g) of the West

Bengal Premises Tenancy Act, 1997 meaning thereby to say that she

was ordinarily residing with the tenant Sumitra Devi up to her date of

death as a member of her family or that his mother was dependent on

the deceased tenant or that she had no other residential premises.

Exhibit '1' is the death certificate of Smt. Sumitra Devi. Exhibit '1'

disclosed the address of Sumitra Devi as Khagaria, Bihar. The mother

of the defendant, Usha Devi, does not appear to have been living with

Sumitra Devi ordinarily up to the date of death of Sumitra Devi as the
 member of her family who was residing with her husband, that is, the

father of the defendant. On the contrary, the defendant has admitted

that his maternal grandmother was dependent upon his mother. The

dependency as mentioned in the said provision of Section 2(g) should

be construed to be a financial dependency and within of the four

corners of the evidence adduced by the defendant, it does not appear

that there is any such financial dependency of the mother of the

defendant, Usha Devi, had on the grandmother of the defendant,

Sumitra Devi Poddar, the deceased tenant. In fact, question no.59 is

important to quote where the question was "Why didn't your mother

use to reside with your father at Dhanbad?" The witness deposed

"Because my grandmother used to live alone and she used to fall sick."

In question no.60, the witness was asked "I take it that it is your

evidence that to look after your grandmother your mother used to

reside with your grandmother at 5, K.S. Roy Road, Kolkata?" The

witness deposed - 'Yes'.


      Summary from the said deposition comes out that firstly, the

mother of the defendant was not ordinarily residing with his

grandmother which is a pre-requisite for claiming to be a tenant

within the meaning of Section 2(g), secondly, her stay, if at all, with

the deceased tenant, has been justified to be to look after the deceased

tenant during her illness at the suit premises. Lastly, the evidence of

the defendant has falsified his statement in paragraph 7 of his written

statement that - "The said Usha Devi does not own and occupy any

other residential premises" for the sole reason that in question nos.83,
 167 and 168, in his cross-examination, the defendant admitted that

his mother inherited a share in his father's estate and that his father

was residing at 493/B, G.T. Road, South Howrah, before his death

and he further deposed that his father and he were joint owners in

respect of the said premises.


      By the written statement and the evidence led by the defendant

it is sought to be established that defendant was not in exclusive

possession of the suit premises save and except the privy at the main

gate of the premises in question of which he was the tenant and his

mother Smt. Usha Devi was in possession of the suit premises. It is

the further case of the defendant that Sumitra Devi Poddar left for

heavenly abode on 27th May, 2012, leaving behind three daughters,

namely, Smt. Rajmani Devi, Smt. Indu Devi and Smt. Usha Devi as

her heirs and legal representatives surviving her and further that Smt.

Usha Devi was ordinarily living with the said Smt. Sumitra Devi

Poddar at the time of her death as a member of the family of the

deceased and further that the said Usha Devi was fully dependent on

the said Sumitra Devi not owning or occupying any residential

premises. Therefore, the defendant claims that the said Usha Devi

inherited the tenancy of Smt. Sumitra Devi Poddar in respect of three

rooms at the said premises and was, therefore, in occupation of the

suit premises save and except the privy of which the defendant alone

was the tenant. Therefore, on an analysis of the evidence on record it

is apparent that the defendant has failed to prove the ingredients to be
 declared as a tenant within the meaning of Section 2(g) of the West

Bengal Premises Tenancy Act, 1997.


      Learned Advocate for the plaintiff has relied upon the following

Judgments in the case of -

            •   Prasun Chakraborty - Vs. - Smt. Indira Jaiswal,

                reported in (2016) 4 Cal LT 420.


            •   Vimal Chand Ghevarchand Jain & Ors. - Vs. -

                Ramakant Eknath Jadoo, reported in (2009) 5 SCC

                713.


            •   Iswar Bhai C. Patel alias Bachu Bhai Patel - Vs. -

                Harihar Behera & Anr., reported in (1999) 3 SCC

                457.


      In Prasun Chakraborty (supra) the plaintiff seeks to show that

it is necessary for him to institute a suit against the mother of the

defendant inasmuch as according to the plaintiff, the defendant was in

possession of the suit premises. Paragraphs, 16, 17, 18, 19 and 20 of

the said judgment are relevant for the present case wherein a Division

Bench of this Hon'ble Court held that since the sons of the deceased

tenant could not establish that they were financially dependent upon

their father or that they were maintained by their father during the

lifetime of their father, the said sons of the tenant could not inherit the

tenancy in question from their father so also in this case in order to

come to a finding that Usha Devi became a tenant by ordinarily

residing, as alleged, she had to prove that she was also financially
 dependent upon her mother, Sumitra Devi Poddar, who was a tenant

of the suit premises. Therefore, ratio of this judgment supports the

argument advanced by Mr. Kapoor in the present case that Usha Devi

was never a tenant in respect of any portion of the suit premises.


      The next decision in the case of Vimal Chand (supra) has been

relied on by the plaintiff in order to submit that the best available

evidence should be brought before the Court and if such step is not

taken by the party, adverse inference may be drawn against him. In

the present case, defendant claims that Usha Devi inherited the

tenancy of the mother; defendant claims that Usha Devi ordinarily

used to reside with her mother at the time of her death; defendant

claims that Usha Devi was financially dependent upon the said tenant,

Sumitra Devi Poddar. But no cogent evidence has been led by the

defendant to establish such contention. In this context, it was

submitted by the plaintiff that Usha Devi is the best person to say

before the Court as to what was the real incident but the defendant,

although, claimed that he has got cordial relationship with his mother,

has not brought the said witness before this Court. When it is on

record that the said Usha Devi never took any steps after her mother's

demise to get the tenancy changed in her name either orally or in

writing, it is difficult to rely on the oral evidence of the defendant that

Usha Devi was residing with Sumitra Devi Poddar at the suit

premises. Following the said view of the Hon'ble Supreme Court, this

Court also holds that adverse presumption under Section 114(g) of the
 Indian Evidence Act should be drawn and this goes against the

defendant.


      The next decision cited by Mr. Kapoor is in the case of Iswar

Bhai C. Patel (supra). This is also on the issue of adverse

presumption. Relying on the ratio in the said judgment it has been

contended by Mr. Kapoor appearing for the plaintiff that although, it is

the specific case of the plaintiff that defendant is a trespasser in the

suit premises and after death of Sumitra Devi Poddar, the original

plaintiff, possession of defendant in the suit premises cannot be held

to be legal and, although, the defendant has pleaded that his mother

was residing with the original tenant and thus, inherited the tenancy,

no endeavour was made by the defendant to bring his mother to

depose on the box that whatever the defendant pleaded in his written

statement with regard to the inheritance of his mother, the tenancy of

his grandmother is correct. In absence of such endeavour on the part

of the defendant it is but to hold that the defendant has deliberately

withheld the best available witness in support of his case and in such

circumstances, there is no other alternative but to hold that the

defendant is a trespasser in the suit premises and has miserably failed

to prove that his mother was the tenant.


      Contention raised by the defendant that he was not in exclusive

possession of the suit property and, therefore, the suit is not

maintainable for eviction of a trespasser, can also not be accepted.

Exhibits 'C' and 'D' are the electricity bills issued by the Calcutta
 Electricity Supply Corporation in respect of the suit premises and it

stands in the name of the defendant. Writ of summons was served

upon the defendant personally at the suit premises. This is another

evidence to show that the defendant is in occupation of the suit

premises. Those apart, record reveals that the defendant described his

address in the written statement to be of 5, Kiran Shankar Roy Road.

Therefore, this voluntary statement of the defendant cannot be

overlooked. It cannot be accepted that he is not residing at premises at

5, Kiran Shankar Roy Road. However, this does not prove that he is in

exclusive possession of the said premises. Evidence on record shows

that he is in exclusive possession of the suit premises, and that his

mother was not residing there. Neither any documentary evidence has

been placed before this Court to show that his mother Smt. Usha Devi

was residing with Sumitra Devi Poddar ordinarily during her lifetime

and up to her death, nor any oral evidence has been led in that regard.

No further evidence has been led to prove that even after death Smt.

Usha Devi was in occupation of the suit premises. At least Usha Devi

would have been called as a witness to prove on DOC that she was

residing in the suit premises after or before the death of the original

tenant Sumitra Devi Poddar. It is the defendant who knows best why

such an important witness has not been brought before the Court to

clarify the position. This act of the defendant obviously will go against

him for withholding of the best evidence from the Court. It is also not

on record that Usha Devi ever made any attempt to approach the

landlord to change the rent receipt in her name on the plea that she
 has inherited the tenancy after the death of her mother. No

correspondence was made with the landlord to show that even she

was entitled to stay at the suit premises as a tenant. Although, the

defendant claims that the tenancy was a non-residential one and as a

result whereof, the limited period of five years as mentioned in Section

2(g) of the aforesaid Act does not apply in this case for the defendant's

mother but that has also not been sought to be proved by any means.

No evidence has been led on behalf of the defendant to show that the

premises was a non-residential premises. Therefore, from the above

discussion it is clear that the defendant cannot claim to be a tenant,

nor can it be claimed that his mother Usha Devi inherited the tenancy

of Sumitra Devi Poddar. Therefore, this issue is, accordingly, decided

in favour of the plaintiff.


      The defendant, however, relied on a decision in the case of

Ashrukana Pal - Vs. - Sabita Ghosh Sarkar & Anr., reported in 2016

SCC Online Cal 10503 wherein it has been held -

             "Section 2(g) of the Act has dealt with the tenancy for
      residential purposes and tenancy for non-residential purposes
      separately. The time limit for a period not exceeding five years is
      not applicable to non-residential tenancies."



      Such decision has no applicability in the present case inasmuch

as no effort has been made by the defendant to prove that the tenancy

was a non-residential tenancy granted in favour of Sumitra Devi

Poddar and further that when the defendant has failed to prove the

ingredients of Section 2(g), question of applicability of five years has no
 role in the present case. The decision relied on by the defendant in

Nand Kishore Marwah & Ors. - Vs. - Samundri Devi, reported in

(1987) 4 SCC 382 agitating that the Hon'ble Supreme Court has held

- "It is settled law that rights of the parties will be determined on the

basis of the rights available to them on the date of the suit..." This

proposition has also got no manner of application in the present case.

The defendant contended that on the date of the filing of the suit even

five years had not lapsed, therefore, during the pendency of the suit

those rights to continue with the property was extended and he cannot

be termed to be a trespasser in the premises in question. This

submission of the defendant is self-contradictory. On the one hand he

says that limit of five years is not applicable in respect of a non-

residential premises, on the other hand, he contends that his mother's

possession in the suit premises cannot be held to be illegal. Since her

right to possess the property continues even during the pendency of

the suit taking it to be five years from the date of death of Smt.

Sumitra Devi Poddar who died on 27th May, 2012 whereas, the suit

was filed in the month of July, 2013. This judgment has also no

application in the present case in view of the defendant's own

contention that the limit of five years is not applicable for a non-

residential tenant. It is a case where the defendant has come forward

and deposed that his father was also residing at 5, Kiran Shankar Roy

Road, Kolkata - 700001, prior to purchase a flat at Flower Valley

Complex in Howrah as evident from Exhibit 'G' which is a certified

true copy of the Deed of Conveyance by which a flat was purchased by
 the father of the defendant at the aforesaid Flower Valley Complex in

Howrah. The defendant's mother used to reside with the defendant's

grandmother as a member of family, is not evident from the evidence

on record, rather, the natural presumption is that a wife is supposed

to live with the husband while the husband is the owner of a flat and if

no contrary is proved that the defendant's mother ordinarily resided

with his grandmother at the suit premises, there is no reason to hold

that the mother of the defendant became a tenant within the meaning

of Section 2(g) of the aforesaid Act. It is the duty of the defendant to

prove that she became tenant after satisfying the ingredients of

Section 2(g) of the said Act. It is not the law that automatically a

person becomes a tenant on the death of the original tenant. There are

certain instance which are required to be brought on record by leading

cogent evidence in respect thereof and so long that is absent, Court is

under no obligation to hold that such tenancy devolved upon the

mother of the defendant. Apart from the devolution of tenancy of

Sumitra Devi Poddar upon her daughter Usha Devi, it is not evident

from the evidence that she at all resided in the suit premises after

death of the tenant Sumitra Devi Poddar. The defendant has

completely failed to discharge the burden of proof that his mother is a

tenant in respect of the suit premises in compliance of the

requirement under Section 101 of the Indian Evidence Act, 1872 and

no independent evidence has been led by the defendant in this regard,

rather, the oral evidence of the defendant is contrary to some extent
 and in places the deposition appears to this Court to be unworthy of

credit because of his diverse stand.


      It has been contended by the defendant that the plaintiff cannot

derive any advantage from the discrepancies in the pleadings and the

evidence of the defendant having failed to prove its own case and to

substantiate such plea reliance has been placed by him on a decision

in the case of A.C. Bhattacharjee - Vs. - Arun Krishna Roy & Ors.,

reported in 65 CWN 1175. Although, no reliance is necessary to be

placed on this decision because the same cannot be the argument on

behalf of the defendant at all inasmuch as the plaintiff has been found

to have proved its case independent of the pleadings and evidence on

record adduced by the defendant. Therefore, this decision also has got

no application in the facts and circumstances of this case.


      On behalf of the defendant it has been further submitted that in

the event two interpretations are possible in respect of provision of a

particular Statute, the interpretation of the Statute favouring the

tenant should be adopted. Learned Counsel appearing for the

defendant has placed reliance first on the decision of Prasanta Kumar

De Chowdhury & Ors. - Vs. - Tapas Kumar Das, reported in AIR

1981 Cal 332. Learned Counsel has drawn attention of this Court to a

portion of paragraph 8 of the said decision which says -

      "The West Bengal Premises Tenancy Act is not a general statute
but a special statute enacted for the benefit or protection of the tenant
and as such construction of this statute is to be made in such a way
that it goes in favour of the tenant."
       The proposition, as sought to be pointed out by the learned

Counsel for the defendant, is not in dispute but the question which

falls for consideration in this case is, whether is there any ambiguity

as regards the genuineness of the claim of the defendant that his

mother became a tenant automatically after the death of his

grandmother, Sumitra Devi Poddar. In order to establish his argument

that two interpretations are possible in a case particularly when the

word 'dependent' has not been defined in the Statute, he has drawn

the attention of another decision in the case of Shri Gobind Dass &

Ors. - Vs. - Shri Kuldip Singh, reported in AIR 1971 Del 151.

Drawing analogy to the provisions of Section 2(g) of the West Bengal

Premises Tenancy Act, 1997 with that of the proviso under Section 14

of the Delhi Rent Control Act, 1958, the learned Counsel for the

defendant submitted that when 'dependent' is not defined in the Act

then a liberal meaning of the said word 'dependent' shall be construed

in the ordinary sense of the word. He has drawn attention of this

Court to a portion of paragraph 10 of the said judgment which says -

      "...One cannot shut one's eyes to this structure of our society and
so to give a restricted meaning to the word "dependant" would be to
provide a definition of this word where the legislature has advisedly
chosen not to do so. We would, therefore, in the circumstances of this
case hold that the wives of the brothers of Gobind Dass and their
children were dependent on Gobind Dass for accommodation specially
when it has not been brought on record that the family members owned
any other residential premises..."
       The decision has been relied on by the defendant is in the

context of Section 14 of the Delhi Rent Control Act, 1958 which may

be set out as follows :-

      "14.    Protection     of    tenant    against     eviction.-    (1)
Notwithstanding anything to the contrary contained in any other law or
contract, no order or decree for the recovery of possession of any
premises shall be made by and court or Controller in favour of the
landlord against a tenant: Provided that the Controller may, on an
application made to him in the prescribed manner, make an order for
the recovery of possession of the premises on one or more of the
following grounds only, namely:-
      (a) ...
      (b) ...
      (c) ...
     (d) ...
     (e) That the premises let for residential purpose are required bona
         fide by the landlord for occupation as a residence for himself or
         for any member of his family dependent on him, if he is the
         owner thereof , or for any person for whose benefit the
         premises are held and the landlord or such person has no other
         reasonably suitable residential accommodation."



      The above-mentioned decision has been cited by the learned

Counsel for the defendant to draw the attention of this Hon'ble Court

with regard to the word 'dependent' but the 'dependent' used in the

context in the cited judgment cannot be equated with that of the

'dependent' mentioned in Section 2(g) of the West Bengal Premises

Tenancy Act, 1997. That apart, wives of the brothers of Gobind Dass

and their children mentioned in the cited decision, were dependent on

Gobind Dass for accommodation specially when it has not been
 brought on record that the family members owned any other

residential premises. In the present case, which we are dealing, the

person who claims to be dependent on her mother, the original tenant,

is the wife of another gentleman who had been living elsewhere as

apparent from the evidence adduced by the defendant himself and it is

also apparent that the husband of the defendant's mother died after

the death of the original tenant. In such an event, the logical

conclusion cannot be drawn that the mother of the defendant would

possibly have been ordinarily residing with her mother who had a

separate residential premises elsewhere and further that the deceased

tenant Sumitra Devi Poddar died not in the suit premise but at

Khagadia, Bihar, as would be borne out from Exhibit 1. Therefore, the

arguments advanced by the learned Counsel for the defendant relying

on the said two decisions are not at all acceptable.


      I have already pointed out earlier that Issue Nos. 2 and 3 are

interlinked with each other. It was also pointed out that once Issue

Nos. 2 is decided, the same will have direct bearing upon the Issue

No.3. In this case, I have already decided that the defendant is not a

tenant in the suit premises. Now, it is to be decided as to whether the

defendant has any authority under the law to occupy the suit

premises. It has been submitted by the defendant that he is not in

exclusive possession of the suit premises as mentioned in Schedule of

the plaint. He is only in exclusive possession of the privy in the ground

floor and it is his case that his mother was a tenant in respect of other

three premises under the suit. In support of the defendant's plea that
 he is a tenant in respect of the privy, no documentary proof has been

placed before this Court, only it is the oral evidence of the defendant

that he was allowed to occupy the said premises and there was an

understanding that rent bill would be issued in his favour in respect of

the said privy but, ultimately, nothing could be produced to prove that

the defendant has acquired tenancy in respect of the said privy or that

he is the tenant thereof. Therefore, in absence of any definite proof

that the defendant has been legally occupying the said privy, the Court

has no other option but to come to a finding that the defendant is a

trespasser of the said premises inasmuch as it is the case of the

defendant that his mother is in possession of the suit premises other

than the privy in question and while the defendant is not in a position

to establish that his mother inherited the tenancy, occupation of the

defendant in the premises in respect of other portions other than the

privy also becomes illegal and he, therefore, becomes a trespasser in

the entire lot, that is, the premises 'X', 'Y', 'Z' mentioned in the

Schedule appended to the plaint. That being the position, the plaintiff

has a cause of action for filing this suit to evict the trespasser

defendant from the suit premises. Therefore, Issue No.3 is also

decided in favour of the plaintiff.


      Issue Nos. 4 and 5 are taken up together for the sake of

convenience. It is necessary to decide whether the plaintiff is entitled

to decree for eviction and recovery of possession against the defendant

in respect of the suit premises and whether the plaintiff is entitled to

any other reliefs apart from those claimed in the plaint. As against the
 plea of the defendant that on the death of Sumitra Devi Poddar, Usha

Devi, her daughter, was residing ordinarily with the said deceased

tenant Sumitra Devi Poddar and became the tenant by virtue of the

provisions of Section 2(g) of the West Bengal Premises Tenancy Act,

1997 and tried to make out a case that the tenancy was of commercial

use and, therefore, bar of five years as mentioned in Section 2(g) is not

applicable for Usha Devi, who claimed to have been ordinarily residing

with the deceased tenant Sumitra Devi Poddar. The defendant claimed

that Usha Devi became tenant and she being in possession as a tenant

and the defendant being not in exclusive possession of the entire suit

premises, cannot be treated to be a trespasser. However, it is the claim

of the defendant that his mother Usha Devi became the tenant in

respect of the tenancy held by Sumitra Devi Poddar and because the

property was used as commercial property, the said Usha Devi, the

mother of the defendant, became the tenant in absence of Sumitra

Devi Poddar. Endeavour was made on behalf of the plaintiff to show

that the shop rooms where deceased Sumitra Devi Poddar was

running a ration shop, could not be used any further as such,

inasmuch as the licence to operate as such, does not exist. In absence

of any licence which was issued to Sumitra Devi Poddar, subsequent

to the death of the said tenant, defendant cannot use the said shop

rooms for any other purpose as the same would tantamount to

"change of user" which would render the mother of the defendant

liable for eviction. Such a contention has been disputed by the

defendant saying that it is well settled that if a particular premises has
 been let out for "non-residential" purpose or for "purpose of trade",

mere change in the nature of trade carried therefrom, would not

and/or cannot tantamount to a change of user of the nature, so that

the tenant is liable to be evicted therefrom in terms of the provisions

engrafted in the Rent Control legislation. On this submission, the

defendant has placed reliance on a judicial pronouncement in the case

of Hari Rao - Vs. - N. Govindachari & Ors., reported in (2005) 7 SCC

643. In the cited case, the respondent-landlord leased out a room for

the purpose of a shoe trade or trade in leather goods by the tenant. There was a prior proceeding in which there was a compromise and the building was re-let to the tenant after it was remodeled or reconstructed. While carrying on his business, the tenant had used a part of the premises for carrying on a trade in readymade garments and that amounted to a user of the building by the tenant for a purpose other than that for which it was let out, within the meaning of Section 10 (2) (ii) (b) of the Act which governed the tenancy in question. The tenant had also fixed name-boards outside and drilled two holes in the walls for fixing racks for the purpose of his trade and had taken an independent three phase electricity connection and for that purpose he had made the holes on the floor and on the wall. It was contended that those acts of the tenant amounted to commission or causing the commission of such acts of waste as would likely to impair materially, the value or utility of the building within the meaning of aforesaid Section 10 (2) (iii) of the Act. Accordingly, the landlord filed a suit for eviction of the tenant/appellant before the Hon'ble Supreme Court on the said grounds. Tenant took the defence that original letting was not for the purpose of trade of shoes or leather goods alone, but he was still carrying on the business of selling shoes and had expanded his trade by including readymade garments. There was no user of the room by him for the purpose other than the purpose for which it was let out. Therefore, he was not liable to be evicted on that ground. He contended that the fixing of the sign- boards was permitted by the landlord and fixing of the boards or the fixing of the racks for the purpose of the trade did not amount to acts of waste as are likely to impair materially the value and utility of the building. On an interpretation of the term "trading shoes and other leather goods" while creating the tenancy the Hon'ble Apex Court held

- "Merely because a shop let out for trade in shoes and other leather goods, is used by the tenant also for the purpose of trading in readymade garments, it could not be held to be a user by the tenant of the premises for a purpose other than that for which it was leased."

The Hon'ble Apex Court further noted that even at the time when the proceedings were pending, the tenant was carrying on the business of trading in shoes which, according to the landlord, was the purpose for which the building was let out and that the trade in shoes was not stopped by the tenant. All that happened was that the tenant had also diversified into selling some readymade garments or T-shirts, the manufacture of which even some of the manufacturers of shoes had taken up. Relying on the evidence, the High Court passed an order of eviction under Section 10 ((2) (ii) (b) of the aforesaid Act which has been set aside by the Hon'ble Apex Court holding, inter alia, that -

"the Rent Control Legislation is enacted in the larger interest of the society as a whole and it is not intended to confer any disproportionately larger benefit on the tenant to the disadvantage of the landlord. But that does not mean that the Rent Control Legislation should not be approached as a beneficial piece of legislation and with the recognition that reasonable protection to the tenant is one of the objects of that legislation."

While interpreting the provision of law with regard to change of user and the consequences thereof, the Hon'ble Apex Court held that -

"one must see whether there has been such a change of user of the premises as to make it alien to the purpose for which the building was let and deny eviction when the basic activity remains the same and there is only a variation in the manner or mode of carrying on of that activity." The purpose for which the premises was let out, has mentioned in the said decision and the business which is in effect, was being carried by the tenant, are inter-related. Therefore, the Hon'ble Apex Court held that it would not amount to change of user. But in the present case, such plea cannot be adopted inasmuch as the premises was being used by Sumitra Devi Poddar for a particular purpose for which licence from Statutory Authorities was required and obtained but after her death and in absence of such licence, the defendant cannot contend that even if such premises is being used other than the purpose for which it was let out, does not tantamount to change of user, is unacceptable. Therefore, the said decision has no bearing in the present case.
In answering the Issue Nos. 4 and 5 it is held that the defendant is a trespasser in the suit premises and he is liable to be evicted therefrom. Consequently, the plaintiff is entitled to a decree for recovery of possession in respect of the suit premises as mentioned in the Schedule. The plaintiff is also entitled to a mesne profit which cannot be readily assessed and for the purpose, this Court appoints Ms. Anjusree Mukherjee, Advocate, Bar Association and Mr. Soumyajit Ghosh, Advocate, Bar Library Club, jointly as Special Referees to determine the mesne profit for the defendant's occupation over the suit premises since the date of filing of the suit till the date of the delivery of possession by the defendant on the basis of prevailing market rate. The Special Referees will be entitled to a remuneration for Rs.35,000/- (Rupees Thirty Five Thousand) only, each to be borne by the decree-holder alone at the first instance. The parties will render all possible assistance to the Special Referees to complete the quantification of mesne profits. The decree-holder shall also bear the costs and expenses of the Special Referees in conducting the reference.
So far the claim of interest is concerned, the decree-holder will be entitled to an interest @ 9% per annum over the total amount of mesne profit.
As I have held that Usha Devi is not the tenant, purported deposit of rent in the Rent Control Office is held to be invalid tender of rent and she will be free to take the same back. Her such deposit has not created any equity in her favour.
Suit is, accordingly, decreed. The plaintiff is entitled to costs for the suit which is assessed at Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) only, payable forthwith by the defendant.
Department is directed to draw up and complete the decree as expeditiously as possible.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
(Sahidullah Munshi, J.)