Calcutta High Court (Appellete Side)
Sa vs Status : Dismissed on 18 February, 2022
18.02.2022 SA 191 of 2018
Court : 04
Sk. Azad Ali
Item
Matter
: 02
: SA Vs.
Status : DISMISSED
Transcriber: nandy Tapan Kumar Roy
Mr. Asis Chandra Bagchi, Senior Advocate
Mr. Amal Krishna Saha, Advocate
Mr. Debnath Mahata, Advocate
...... for the Appellant
Mr. Aniruddha Chatterjee, Advocate
Mr. Tanmoy Mukherjee, Advocate
......for the Respondent
This matter was again listed after having
reserved for judgment on March 4, 2021. Since
the judgment could not be delivered immediately
for some reasons or other, the matter was again
posted on February 3, 2022 before us and we
invited the Counsels appearing for the respective
parties to argue afresh. Pursuant to such
direction, the matter is listed today and both the
Counsels appearing for the respective parties
made their submissions.
The instant matter pertains to a suit for
recovery of possession against the appellant in
respect of a property described in Schedule 'ka'
to the plaint. The said property originally
belonged to the father of the plaintiff/respondent
who, by executing a registered deed of gift dated
August 16, 1984, gifted the property to the
plaintiff and subsequently the appellant was
inducted into the property on January 31, 1999 at
a monthly rent of Rs.650/-.
The plaint case proceeds that though the
aforesaid rent was paid for some period but
subsequently the appellant defaulted in payment
of the rent although remained in occupation of the
property as described in schedule 'ka' to the
plaint. A combined notice under Section 6(4) of
the West Bengal Premises Tenancy Act, 1997
and Section 106 of the Transfer of Property Act
was issued upon the appellant through the lawyer
appearing for the plaintiff/respondent and despite
the expiration of the period reserved, therein, the
appellant remained in occupation thereupon.
The defence, which has been taken,
pertains to the claim of the plaintiff/respondent on
the ground of default in payment of rent, dearth of
accommodation to run the business and the
expiration of the term reserved in the registered
agreement. It appears from the findings returned
by the Trial Court that a plea was taken by the
appellant that there has been an ambiguity in the
identification of the property and even if the
decree is passed, it is incapable of being
executed. It was further contended that the
property was given on the basis of the agreement
for running a sawmill and the document would
reveal that the right was given to make
construction for such purposes.
The Trial Court proceeded to decree the suit
primarily on the ground that though the suit was
filed under the West Bengal Premises Tenancy
Act, 1997, the defendant did not file any
application under Section 7 thereof and,
therefore, there is no other option left but to
decree the suit in favour of the plaintiff. However,
the Trial Court further recorded the deposition of
the first witness of the defendant, where in the
cross-examination he admitted that he purchased
10 decimals of land from the elder brother of the
plaintiff/respondent and, therefore, he cannot turn
around and contend that the plaintiff/respondent
has no title to the property. However, the Trial
Court found that the case is founded on the
provisions of the West Bengal Premises Tenancy
Act, 1997 and since the appellant had failed to
comply with the mandatory provisions contained
under Section 7 of the said Act, a decree on the
ground of default in inevitable and accordingly,
passed the decree. The Appellate Court affirmed
the said decree as he did not find any ground
warranting interference with the decree of the
Trial Court.
Mr. Bagchi, in his usual eloquence try to
raise a plea of inexecutibility of the decree of the
introduction of the West Bengal Estate
Acquisition Act and the West Bengal Land
Reforms Act and sought to contend that once the
property is vested, the suit is not maintainable.
However, he further contends that the prayer
made in the plaint is defective as it is restricted to
the sawmill constructed upon the land and there
is no prayer for a decree in respect of the land
itself. He, thus, contends that once the decree for
recovery of land has not been made, the Court
ought not to pass a decree against his client.
Initially, when this matter was moved under
Order XLI Rule 11 of the Code of Civil Procedure,
this Court finds that neither the suit is
maintainable under the West Bengal Premises
Tenancy Act, 1997 nor under the Transfer of
Property Act but from the respective stands of the
parties, it appears that the status of the appellant
is nothing but a licensee and, therefore, the
plaintiff is otherwise entitled to a decree for
eviction. The said order was carried to the Apex
Court and by an order dated November 19, 2019
the matter was remanded to the High Court for
disposal at the admission stage.
It is categorically observed by the Supreme
Court that though there has been a tenancy
agreement executed between them, the counsel
for the respondent, i.e., the respondent herein
admits that it was not the case of his client that he
was a licensee but all along it was contended that
he was a tenant.
The Supreme Court ultimately held that the
matter to be decided on the basis of the
pleadings and the Court should not travel beyond
the pleadings.
In view of the above, we have meticulously
examined the facts adumbrated in the plaint as
well as the written-statement filed by the
respective parties. The plaint would reveal that on
the basis of the registered agreement, the
defendant was put into possession of the
premises at a rental of Rs.650/- payable
according to the English Calendar monthly and
defaulted in payment thereof. We find a
statement pertaining to dearth of accommodation
pleaded by the plaintiff but we do not find that
there is any issue pertaining to reasonable
requirement framed by the Trial Court. Apart from
the usual issues, the seminal issues which have
been framed relates to existence of relationship
of landlord and tenant between the parties and
whether the appellant is a defaulter and owns the
land. Obviously, the reason for the aforesaid
issue was if the tenant has its own land, it is one
of the grounds enshrined under Section 6 of the
West Bengal Premises Tenancy Act, 1997. Apart
from the considered finding made by the Trial
Court, we do not find any elaborate discussions
on the aforesaid issue either in the judgment of
the Trial Court or the Appellate Court. However,
both the Courts proceeded on the basis of default
having committed and more emphasis was put on
non-compliance of the provisions contained under
Section 7 of the said Act. It is a matter of record
that at the first appellate stage, an application
under Section 7 of the West Bengal Premises
Tenancy Act, 1997 was taken out by the
appellant contending that the appeal being the
continuation of the suit, he may be permitted to
comply the said provisions. The First Appellate
Court dismissed the said application and the said
order was affirmed by this Court under Article 227
of the Constitution of India. The order of the High
Court was further carried to the Supreme Court
and the Supreme Court declined to interfere at
the SLP stage.
We are astonished at the first instance when
the plaintiff/respondent took a stand at the bar
that it is not a case filed under the provisions of
the West Bengal Premises Tenancy Act, 1997.
However, a clarification is made that though the
case has been filed under the aforesaid Act, but
an alternative case of recovery of possession
under the Transfer of Property Act has also been
made out. In the event, the Court finds that the
said Act has no manner of application, there is no
feter on the part of the party to make an
alternative prayer in a suit, which depends upon
the eventualities. It was all along the stand of the
plaintiff/respondent that the subject property
comes within the ambit of the West Bengal
Premises Tenancy Act, 1997 and has succeeded
in getting the decree in both the Courts below. It
is too late in day to take a contrary stand and falls
to the submission of the appellant.
Even if we consider for the sake of
argument that the West Bengal Premises
Tenancy Act, 1997 does not apply yet it is an
admitted position that by virtue of a registered
agreement, the appellant was put into possession
of the subject property and in view of Section
3(C) of the West Bengal Premises Tenancy Act,
1997, the said premises is exempted from the
operation of the said Act.
Even apart, a person who is occupying the
property on the strength of a registered
agreement, reserving a period and if such period
expired, under Section 11 of the Transfer of
Property Act, he has no right to remain in
occupation. Furthermore, a combined notice was
issued by the plaintiff/respondent not only under
Section 6(4) of the West Bengal Premises
Tenancy Act, 1997 but also under Section 106 of
the Transfer of Property Act as well and,
therefore, in whichever way we consider the
case, we do not think the appellant is entitled to
remain in occupation and the ultimate decree
passed by both the Courts below suffers from
serious infirmity and illegality.
Apart from the same, the Court should not
consider the point, which is neither pleaded nor
evidence is adduced thereupon before the Trial
Court. Even the Supreme Court while remanding
the matter observed that the instant appeal
should be considered on the basis of the
pleadings of the parties and, therefore, any
departure from the peripheral thereof would be in
direct conflict with the observations of the
Supreme Court.
We, thus, do not find any substantial
question of law is involved in the instant appeal.
The appeal being SA 191 of 2018 is
dismissed without any order as to costs.
The Lower Court Records, if already arrived,
be send down to the Court below by special
messenger at the cost of the respondent. Such
costs shall be put in by the respondent within a
week from date.
Urgent Photostat Certified copy of this
order, if applied for, be given to the parties on
priority basis upon completion of requisite
formalities.
(Harish Tandon, J.)
(Kausik Chanda, J.)
