Sri Hemanta Kumar Prasad vs Sri Sri Lakshmi Narayan Jew
2021 Latest Caselaw 1756 Cal

   10.
9.03.2021
   S.D.

                                  S.A. 110 of 2018
                                        With
                        CAN 1 of 2018 (Old CAN 2947 of 2018)

                              Sri Hemanta Kumar Prasad
                                          Vs.
                             Sri Sri Lakshmi Narayan Jew
                           Represented by its Sebait namely
                            Sri Swapan Kumar Das & Anr.

                  Mr. Asish Chandra Bagchi
                  Ms. M. Maity
                                         ..For the Appellant.

                  Mr. Tarak Nath Halder
                  Mr. Sagnik Chatterjee
                                             ..For the Respondents.

In re: CAN 1 of 2018 (Old CAN 2947 of 2018)

The second appeal was admitted on formulation of

substantial questions of law in respect of the First Appellate

Judgment and Decree dated January 31, 2018 on reversal of

the Trial Court's judgment and decree dated August 30, 2014

by Division Bench of this Hon'ble Court is stayed of the

Ejectment Execution Case being Case No. 6 of 2019 pending

before the Additional Civil Judge Junior Division, Sealdah,

South 24-Parganas was stayed with the direction that the

application for stay shall be returnable before the appropriate

Bench in the month of August 2018 subject to convenience of

the learned Court. Pursuant to the said order, the application

for Stay of the execution of the decree passed by the First

Appellate Court is taken up for consideration. The plaintiff

decree holder/respondents have filed an affidavit-in-

opposition against the application for stay of the proceeding

in execution of the decree since the appellant has preferred

this Second Appeal having a right of hearing if the stay is not

allowed to continue, the appellant would undoubtedly suffer

execution and eviction from the premises without the

judgment and decree impugned being tested by this Hon'ble

Court but the appellant cannot claim a blanket right to

continue with this appeal without being heard with the of

stay of the proceeding in the execution case.

On behalf of the respondents, it is submitted that the

respondents have obtained the decree of eviction against the

appellant and are entitled to enjoy the fruits of such decree

though subject to the result of the instant appeal pending

before the Hon'ble Court. The allegation made in the stay

application that the respondents are creating disturbance in

the peaceful possession in the suit premises is a myth and a

concocted story because the respondents/decree holders have

right to put the decree into execution. Be that as it may, with

regard to the claim made for occupational charges in the

disposal of the appeal, it is pointed out on behalf of the

respondents that the area of the suit premises is about 606

sq.ft. comprising three rooms, one kitchen, one dining space

cum varandah and a bath cum privy in the groud floor of the

two storied building situated at Premises No. 82 K.G. Basu

Sarani, Police Station - Beliaghata, Kolkata - 700085 for the

purpose of residential use by the appellant who is residing

therein without paying any occupational charges on stay of

the decree of eviction was passed against the appellant.

It is also submitted that the respondents are entitled to

arrear occupational charges from the date of decree passed in

Tittle Appeal No. 2 of 2015. It is now submitted that Mr.

Samar Banerjee, Advocate who is a registered valuer of this

Hon'ble Court has assessed the valuation of the suit building

and by submitting his report dated August 4, 2019 and

according to his valuation report, the rate of rent in respect of

the decreetal premises should be Rs.12.500/- per month which

has been assessed on the basis of the rate of rent prevailing of

the neighbourhood of the suit premises as such the suit

premises if let out at present would fetch a minimum rent of

Rs.12,500/- per month. The report so submitted is annexed to

the affidavit-in-opposition as annexure 'A' which has been

annexed on the basis of agreement for rent by and between

the landlord and a tenant in respect of one tally shed room @

Rs.3500/- per month. By inviting my attention to the

agreement for leave and licence for 11 months in the

neighbourhood of the suit premises, it is submitted that the

occupational charges of Rs.12,500/- should be ordered to be

paid by the appellant. My attention is also invited to the

situation of the suit premises which abuts on an average 25 ft.

wide K.G. Basu Srani Road on the West and is about 0.5 k.m.

off towards north from the intersection of Beliaghata Main

Road and the said K.G. Basu Sarani Road and is equidistance

towards South from the intersection of Narkeldanga Main

Road and the said K.G. Basu Sarani Road. Thus, the locality

is well developed and enjoying every amenities of life in

support of the case made out for a claim of occupational

charges @ Rs.12.500/-.

Learned Advocate for the respondents has relied upon

a decision in the case of Pratul Saha & Ors. Vs. Purnabrata

Dutta reported in 2010 (4) CHN (CAL) 108 in support of the

observations made in paragraph 20 in particular.

In reply, learned Advocate for the appellant has

submitted that the Valuer's report is one sided and cannot be

relied upon and a report of Mr. Kalyan Bhattacharjee has

been placed in service which shows that in respect of the suit

premises evaluation of the fair rent as per the agreement

between the Sebaits of the above premises and the tenant Shri

Hemant Prasad as on March 2021 has been assessed and the

assessed rents would fairly come to a sum of Rs.987.25 for the

period of March 2019 to February 2022.

I am unable to accept the report which has been filed on

behalf of the appellant for the fair rent assessed by Mr.

Kalyan Bhattacharjee, Chartered Engineer. Now, having

regard to the situation of the suit premises in well developed

area and the amenities as provided in the suit premises, this

Court is of the view that occupational charges @Rs.9,000/- be

made available in favour of the respondents landlord.

Accordingly, this Court directs that the stay of the operation

of the judgement and decree impugned shall continue till the

disposal of the appeal subject to payment of sum of Rs.9,000/-

per month to the respondents towards occupational charges.

The occupational charges would be payable by 15th of March

2021 and shall be payable month by month and arrear

occupational charges shall be payable from the date of the

decree impugned. The appellant is given liberty to pay the

arrear occupational charges by ten monthly instalments; first

of such instalment including the occupational charges of

Rs.9,000/- will be paid by March 15, 2021 and the rest arrear

including the occupational charges be paid by 15th of each

succeeding month for another nine months. After the arrear

amounts are being paid, only occupational charges, i.e.

Rs.9,000/- be paid on 15th of each succeeding month.

As per the submissions made on behalf of the

respondents, the appellant is directed to pay the monthly

occupational charges as well as the arrear instalment to the

bank account of the respondents in the Narkeldanga Branch,

State Bank of India, Kolkata bearing Account No.

11166027591 within March 15, 2021 and within 15th of each

succeeding month. In default of the conditions stated

hereinabove, Execution case shall proceed.

Thus, the application being CAN 1 of 2018 (Old CAN

2947 of 2018) is disposed of.

(Shivakant Prasad, J.)