Calcutta High Court (Appellete Side)
Sri Rabin Pal vs Sri Susobhan Dutta & Anr on 21 January, 2021
21.01.
18
2021
AG
M
Ct SAT 288 of 2019
02 With
CAN 1 of 2019 (Old CAN 9902 of 2019)
Sri Rabin Pal
vs
Sri Susobhan Dutta & Anr
Mr. Malay Bhattacharya,
... For the Appellant.
Mr. Abhisek Banerjee,
... For the Respondents.
The instant Second Appeal arises from a
judgement and decree dated 31st May, 2019 passed by
learned Additional District Judge, 5th Court, Howrah in
Title Appeal No. 71 of 2014 affirming the judgment and
decree dated 29th April, 2014 passed by learned Civil
Judge (Junior Division), 3rd Court, Howrah in Title Suit
No. 138 of 2018.
The plaintiff/appellant filed a suit for declaration of
his tenancy right in respect of the suit premises under
the defendant no. 1 concerning one room with
verandah, common user of privy and bath, separate
kitchen in holding no. 65, Lakshan Das Lane, PS and
District - Howrah at a monthly rent of Rs. 50/- payable
according to English calendar. It is a specific case that
the rent was paid to the said defendant regularly but
later on defendant refused to accept the same on the
pretext of the enhancement of rent. Plaintiff, having no
other alternative to tender the rent to him by money
order, thereafter deposited rent in the office of the Rent
Controller. The plaintiff further asserts that he has got
an electric connection at the suit premises in his name
and have also been issued a Ration Card and Aadhar
Card showing the suit premises as the ordinary place of
residence.
The defendant appeared and contested the suit
denying the allegations made in the plaint. It is the
specific case of the defendant no. 1 that the suit
property was tenanted to one Shanti Khan, against
whom suit for eviction under the West Bengal Premises
Tenancy Act, 1956 was filed. The said suit was decreed
and the decree was put into execution sometime in the
year 2007.
Both the Courts have held that plaintiff/appellant
has failed to prove his right as tenant in respect of the
suit premises and proceeded to dismiss the suit.
It is a glaring example relating to correctness of
the celebrated observation of the Privy Council "the real
trouble starts after getting decree." The decree was
obtained and subsequently all the litigations came to be
launched with the intent to frustrate the decree. It is
not in dispute that the plaintiff/appellant has filed a
miscellaneous case challenging the validity, legality and
the executability of the decree and as of this date he
appeared unsuccessful.
The present suit was filed sometime in the year
2008 admittedly, after the passing of the decree of
eviction against the tenant, i.e., Shanti Khan.
It is pertinent to record that the said Shanti Khan
appeared in the execution proceeding and conveyed her
intention to surrender the tenancy, which appeared to
have been accepted by the Court. The appellant and
the respondent are not ad idem on the possession
having obtained through execution of the decree.
Admittedly, the suit was filed after the decree for
eviction is passed against the tenant in respect of the
suit premises. By an amendment having brought in the
year 1976 the provision contained under Order XXI
Rule 101 of the Code of Civil Procedure received a sea
change. There is an express embargo created in
institution of the suit relating to a decreetal property
and the executing Court has been blessed with the
jurisdiction and conferment of power to decide the
right, title and interest of a person in respect of the
decreetal premises. Had it been a case that a suit for
declaration of such nature is filed prior to the decree for
eviction having passed in respect of the suit premises,
it would have very well conceived that the same is
maintainable but the suit after the decree for eviction is
passed is not maintainable if it relates to the decreetal
property and the person sought for his status to be
declared by the Civil Court. Mere providing an electric
connection at the suit premises does not ipso facto lead
to a presumption of a tenancy. The electric connection
given to a person in occupation does not necessarily
mean that the tenancy right is established.
The issuance of Ration Card and the Aadhar
evincing the address that of the decreetal premises also
does not lead to a inchoate conclusion that the person
is occupying the same as tenant. Those documents may
have presumptive value of possession but cannot have
any nexus to the nature of the occupation, more
particularly, the tenancy right.
We, thus, do not find any infirmity and illegality in
the ultimate decision of both the Courts below and find
that the suit deserves dismissal.
The appeal is dismissed under Order XLI Rule 11
of the Code of Civil Procedure, as it does not involve
any substantial question of law.
As the main appeal is dismissed, the connected
CAN application is also dismissed.
There shall be no order as to costs.
(Harish Tandon, J)
(Kausik Chanda , J)
