Calcutta High Court

Molina Dey vs Gargi Dey & Anr on 13 July, 2022

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                       IN THE HIGH COURT AT CALCUTTA

                       (Ordinary Original Civil Jurisdiction)

                                 ORIGINAL SIDE

Present:

The Hon'ble Justice Krishna Rao

                                  CS 34 of 2021

                                    Molina Dey

                                      Versus

                                 Gargi Dey & Anr.



                 Mr. Meghnad Dutta, Adv.
                 Mr. Arindam Paul, Adv.
                 Ms. Parna Mukherjee, Adv.
                                                    .....For the Plaintiff


Heard on                    : 24.06.2022

Judgment on                 : 13.07.2022

Krishna Rao, J.: The plaintiff has filed the instant suit praying for a decree

for eviction and recovery of khas possession of the suit property, decree for

Rs. 11,50,000/- as damage and mesne profits at the rate of Rs. 10,000/-

per diem from 03.02.2021 till 07.02.2021 for further mesne profits at the

rate of Rs. 10,000/- per diem until the suit property is not handed over to

the plaintiff.


       The facts of the case is that the plaintiff along with her husband Late

Gobinda Prasad Dey have purchased a flat comprising of two rooms, one,

kitchen covered marble floored verandah together with attached bath room
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with privy and one small room having a total area of about 1050 sq. ft.

situated on the first floor of Municipal Premises No. 103B, Bidhan Sarani,

P.S. Shyampukur, Kolkata - 700 004 by way of registered deed.


      On 05.06.2008, the husband of the plaintiff died leaving behind the

plaintiff as his only legal heir and accordingly by way of inheritance, the

plaintiff has inherited the share of the property left behind by her husband

and the plaintiff has become sole and absolute owner of the entire property.


      One Nirmal Kumar Dey, who was the father of the defendants, was the

tenant under the plaintiff in respect of the suit property at a monthly rent of

Rs. 1300/- per month. The said Nirmal Kumar Dey died on 30.05.2015

leaving behind the defendants as his legal heirs. The wife of Nirmal Kumar

Dey predeceased him.


      The defendants being the legal heirs of the Nirmal Kumar Dey were

living with their father upto till the date of his death and after the death of

their father, they were continued under occupation of the said premises. On

expiry of the period of 5 years from the date of death of Nirmal Kumar Dey,

the defendants have no right over the suit property on and from 01.06.2020

and as such the plaintiff has never accepted any amount on account of

occupational charges or otherwise from the defendants.


      On 13.01.2021, the plaintiff being the landlady had issued notice to

the defendants calling upon the defendant to handover the vacant and

peaceful possession of the suit property but the defendants have refused to

accept the notice and also failed to vacate the suit property.
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      The writ of summons were served upon the defendants but have not

entered appearance in the suit and accordingly vide Order dt. 08.12.2021,

the suit was placed under the heading of "Undefended Suit".


      The plaintiff had examined herself on 20.06.2022 before this Court

and during her examination the following documents were exhibited:-


      "1. Certified copy of the Deed being Serial No. 819 dt. 16.02.2022 vide
      BK No. 1, Vol. No. 140, Pages to Being No. 5940 of 1993 - Exhibit 1.

      2. Certified copy of the Deed being Serial No. 821 dt.16.02.2022, BK No.
      , Vol. No. 140 Pages to Being No. 5941 of 1993 - Exhibit 2.

      3. Copy of the Death Certificate of Gobinda Prasad Deydt.05.06.2008 -
      Exhibit 3.

      4. Rent Receipt issued to Nirmal Kumar Dey for the month of March,
      2015 dt.12.03.2015 for an amount of Rs. 1300/- Exhibit 4.

      5. Copy of Death Registration Details dt.30.05.2015 - Exhibit 5.

      6. Copy of the legal notice sent to the defendants by the plaintiff
      through the Ld. Advocate dt. 13.01.2020 along with Speed Post
      Receipts and the Original Speed Post Letter returned with the
      endorsement refused - Exhibit 6 collectively."



      The plaintiff during her evidence has categorically stated that the

plaintiff and her husband have jointly purchased the property by way of

Registered Deed and after the death of her husband, the property has been

inherited by the plaintiff. It is also proved that the father of the defendants

was the tenant and during the lifetime of the father, the defendants were

residing along with their father. After the death of the father, the defendants

have neither paid the rent nor have vacated the premises. The plaintiff had

sent a notice to the defendants but the defendants have refused to accept

the notice and as such the refusal of notice amounts to acceptance and thus
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it can be said that the defendants have the knowledge that the plaintiff had

sent the notice for their eviction from the suit property.


      As per Exhibit-4, the father of the defendants paid Rs.1300/- as last

rent to the plaintiff on 12.03.2015 and thereafter no rent is paid by the

defendants.


      The father of the defendants died on 30.05.2015 which is duly proved

from Exhibit-5.


      Section 2 (g) of the West Bengal Premises Tenancy Act, 1997 which

reads as follows:-


      "(g) "tenant" means any person by whom or on whose account or behalf
      the rent of any premises is or, but for a special contract, would be
      payable, and includes any person continuing in possession after
      termination of his tenancy and, in the event of death of any tenant, also
      includes, for a period not exceeding five years from the date of death of
      such tenant or from the date of coming into force of this Act, whichever
      is later, his spouse, son, daughter, parent and the widow of his
      predeceased son, who were ordinarily living with the tenant up to the
      date of death of the tenant 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 dependant on him or a person authorised by the tenant who is in
      possession of such premises,] but shall not include any person against
      whom any decree or order for eviction has been made by a court of
      competent jurisdiction :

            Provided that the time limit of five years shall not apply to the
      spouse of the tenant who was a 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 :

            Provided further that the son, daughter, parent or the window of
      the predeceased son of the tenant who was 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
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      for tenancy in a fresh agreement in respect of such premises [on
      condition of payment of fair rent]. This proviso shall apply mutatis
      mutandis to premises let out for non-residential purpose."



      As per the said Act, the defendants have no right over the suit

property after period of 5 years. The father of the defendants died on

30.05.2015

and as such from 01.06.2020, the defendants have become

illegal occupier of the suit property.

The father of the defendants used to pay rent Rs. 1300/- per month

being the monthly rent but the defendants failed to pay the said amount.

From the evidence of the plaintiff and the documents relied by the plaintiff it

is proved that during the life time the father of the defendants has paid last

rent on 12.03.2015 and thereafter no rent was paid and in the meantime the

father of the defendants died on 30th May 2015 and after the death of the

death of the father, the defendant have not paid any rent and on completion

of the period of 5 years of the death of their father, the defendants have lost

their right over suit property.

The plaintiff has claimed mesne profit @ Rs.10,000/- per diem on the