Kiran Devi Agarwala vs Bhagaban Prosad Budhiya
2022 Latest Caselaw 6796 Cal

Dl.   September
18.   21, 2022
                                         S.A. 389 of 2010

                                    Kiran Devi Agarwala
                                            Vs.
                                  Bhagaban Prosad Budhiya

                                  Mr. Amal Krishna Saha,
                                         ...for the appellant.

                              The judgment and decree of affirmation dated March

                  10, 2010 passed by the learned Additional District Judge, Second

                  Court at Malda, in O.C. Appeal No. 9 of 2005 arising out of

                  judgment and decree dated February 16, 2005 passed by the learned

                  Civil Judge (Junior Division), First Court at Malda, in O.C. Suit No.

                  20 of 1984, in a suit for eviction of a licensee, is the subject matter

                  of challenge in this appeal.

                              Mr. Amal Krishna Saha, learned advocate appearing on

                  behalf of the appellant, submits that both the courts below have

                  failed to appreciate that the defendant/respondent had failed to

establish his case of tenancy. As such, the trial court ought to have

decreed the suit on a better title as the ownership of the appellant

was established and recognized by both the courts below. Mr. Saha

has relied upon a decision of the Supreme Court in the case of

Bhagwati Prasad vs. Chandramaul reported in A.I.R. 1966 S.C.

735 to argue that once a defendant fails to establish his right of

tenancy and ownership of the plaintiff is admitted, then a decree of

eviction would follow and it is immaterial whether the plaintiff was

able to prove that the defendant was a licensee.

We have carefully considered the judgments of both the

courts below. It is a specific case of the defendant/respondent that

he was inducted as a tenant by the parents of the person, who came

to depose before the trial court. The status of the defendant could

have been easily established by the persons who are alleging that

the defendant is a licensee. The plaintiff did not depose. The person

deposed has no personal knowledge. The plaintiff did no come to

the box to deny the rent receipt. The creation of licence or tenancy

is within the personal knowledge of the plaintiff. We do not find

any satisfactory answer for not producing the plaintiff whom the

defendant specifically claimed during the trial to be the person who

inducted him as a tenant. The plaintiff was under no disability. The

defendant produced one rent receipt. No doubt, there is discrepancy

between the amount stated in the rent receipt and what was stated in

the written statement. However, the said evidentiary value of the

said document to the extent of showing tenancy could not be

demolished either at the trial or at the first appellate court.

The concurrent finding of fact arrived at by both the

courts below to the effect that the defendant/respondent is not a

licensee does not call for any interference by this court.

No substantial question of law being involved in this

appeal, the same is summarily dismissed under Order XLI Rule 11

of the Code of Civil Procedure.

There will be no order as to costs.

                                                      ( Soumen Sen, J. )



dns                                                  ( Uday Kumar, J. )