Calcutta High Court (Appellete Side)
Balai Chowdhury vs Sudhirranjan Biswas on 21 February, 2022
Dl. February
17. 21, 2022
S.A. 81 of 2020
Balai Chowdhury
Vs.
Sudhirranjan Biswas
The appellant is not represented, nor any
accommodation is prayed for. The appellant was also not
represented on the earlier occasion, when we make it clear that in
the event the appellant goes unrepresented on the adjourned date,
the admission of the second appeal would be decided on the basis of
the materials available on record.
Being aggrieved and dissatisfied with the judgment and decree
dated March 29, 2019 passed by the learned Civil Judge (Senior
Division), Bishnupur, Bankura in Title Appeal No.3 of 2018 the
present appeal has been filed.
The plaintiff's case in brief is that the father of the plaintiff
inducted the defendant as a tenant at a monthly rent of Rs.20/- and
after the death of plaintiff's father, the defendant continued to remain
as a tenant in the suit premises and the rate of rent was enhanced at
Rs.50/- according to Bengali calendar month.
In the meantime, the plaintiff developed the suit premises and
the defendant continued to remain as a tenant over the suit premises at
a monthly rent of Rs.200/- according to Bengali calendar month. The
defendant paid rent up to Chaitra 1415 B.S. in respect of the suit
premises and failed to make payment of rent afterwards. Accordingly,
he became habitual defaulter in payment of rent. The plaintiff sent
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eviction notice under Section 106 of the Transfer of Property Act on
May 19, 2011 with a direction to vacate the suit premises within 15
days from the date of receipt of the notice and the defendant received
the said notice. However, he did not vacate the suit premises. The
defendant contested the suit contending that the suit is not maintainable
and the claim of the plaintiff is barred by limitation. Moreover, the suit
property is not identifiable and also the notice under Section 106 of the
Transfer of Property Act sent by the plaintiff is illegal, invalid and
insufficient and therefore, the plaintiff's suit is liable to be dismissed in
limine.
The learned trial court framed as many as seven issues and
three witnesses were examined on behalf of the plaintiffs and the
plaintiff has also filed registered sale deed for the year 1952 and the
entry in record of rights which are marked as Exhibit 2 & 3, copy of
the postal receipt and A/D card in support of service of notice has been
marked as Exhibit 1. The deed of gift for the year 1992 was also
marked as Exhibit 4. Defendant did not produce any documents before
the Court and after hearing both the parties the learned trial court was
pleased to decree the suit.
Being aggrieved by the said judgment and decree, the
defendant-tenant preferred an appeal before the First Appellate Court
being T.A. No.3 of 2018 and the learned Appellate Court after hearing
both the parties observed that where a tenant is governed by the
Transfer of Property Act landlord is required to prove any service of
notice in terms of Section 106 of the Transfer of Property Act which in
the present case has been duly served upon the tenant. Once it is
established that the notice under Section 106 of the Transfer of
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Property Act was duly served upon the tenant, there is no necessity to
consider whether the grounds mentioned in the plaint has really exists
or not and in view of such discussion, learned Appellate Court was
pleased to dismiss the appeal on contest.
The defendant/appellant has preferred the second appeal before
us contending that both the courts below were too biased upon the
appellant in passing the decree of eviction and practically there was no
reason as to why the courts below disbelieved the evidence of D.W.2,
that the lease agreed in favour of the defendant was a long term lease
and the plaintiff/respondent miserably failed to prove that the
defendant/appellant is a monthly tenant and as such, he is not governed
under the Transfer of Property Act. Both the courts below ignored the
evidence of DW2 who during cross-examination affirmed that he was
present at the time of oral agreement between the father of the plaintiff
and the defendant regarding grant of long term lease and payment of
Rs.30,000/- in respect of the suit premises. Both the courts below
ignored that the suit property is not identifiable due to its
defectiveness.
From the materials available in the record, there is nothing to
show that the lease in question was a long term lease. Even if the
defendant pleaded the case of long-term lease then in that case also he
was under obligation to prove that the documents relating to long term
lease is a registered document in compliance with Section 107 of the
Transfer of Property Act.
In the present case, the notice to quit in terms of Section 106 of
the Transfer of Property Act has been well-proved and the schedule
property is also distinctly identifiable and as such, we are not
convinced that any question of law involved in the present case for
admission of second appeal.
The second appeal is, therefore, summarily dismissed
under Order XLI Rule 11 of the Code of Civil Procedure.
There will be no order as to costs.
( Soumen Sen, J. )
(Ajoy Kumar Mukherjee, J. )
dns
