Dibyendra Nath Banerjee vs Samir Kumar Ghosh & Ors
2022 Latest Caselaw 7101 Cal

                                    1



                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE



    BEFORE:
    The Hon'ble Justice Soumen Sen
    And
    The Hon'ble Justice Siddhartha Roy Chowdhury

                              F.A. 110 of 2019

                          Dibyendra Nath Banerjee
                                   Versus
                         Samir Kumar Ghosh & Ors.


    For the Appellant               : Mr. Suddhasatva Banerjee, Adv.
                                      Mr. Sounak Bhattacharyya, Adv.
                                      Mr. Subhrangsu Ganguly, Adv.

    For the Respondents             : Mr. Souradipta Banerjee, Adv.

Mr. Arnab Roy, Adv.

Ms. Fatema Hassan, Adv.

    Hearing Concluded On            : 15th September, 2022

    Judgement On                    : 28th September, 2022

Siddhartha Roy Chowdhury, J.: Challenge in this appeal is to the

judgement and decree passed by learned Judge, 10th Bench of City Civil

Court, Calcutta in Title Suit No. 1833 of 2006 dated 16th May, 2017.

Briefly stated, the plaintiffs/respondents herein filed a suit for

declaration and permanent injunction against the appellant/defendant

contending, inter alia, that the plaintiff/respondent no. 1, Samir Kumar

Ghosh was inducted as tenant in respect of two rooms, one kitchen and

separate bath privy on the ground floor of Premises No. 59/2, Raja

Rammohan Sarani P.S. Amherst Street, Kolkata-700 009, at a monthly

rental of Rs. 50/- payable according to English Calendar month by

erstwhile landlady Labanya Banerjee. During her life time being satisfied

with the good behavior of the plaintiffs, Labanya Banerjee bequeathed her

property by executing a Will in their favour. Labanya Banerjee died on

14th December, 2006 and after her demise plaintiffs started occupying the

entire half portion of the suit house, which was under the occupation of

Labanya Banerjee. However, the defendant on 13th December, 2016 along

with some anti social elements made an unsuccessful attempt to

dispossess the plaintiffs, on 14th December the plaintiffs were put under

threat of dispossession again. Hence by filing the suit the

plaintiffs/respondents prayed for decree declaring that the plaintiffs are

the absolute beneficiaries in respect of half portion of Premises No. 59/2,

Raja Rammohan Sarani, Kolkata-700 009, and for further declaration that

the defendants do not have any right to occupy forcefully the half portion

of the said house in suit, coupled with prayer for permanent injunction

restraining the defendant and his men and agent from dispossessing the

plaintiffs.

The defendant Dibyendra Nath Banerjee contested the suit by filing

written statement denying all material allegations made against him. It is

specifically denied that the plaintiffs ever used to occupy the suit premises

as tenant under Labanya Banerjee or that Labanya Banerrjee executed

any Will bequeathing her share in the suit house in favour of the

plaintiffs. It is asserted that the plaintiffs taking advantage of the old age

of Labanya Banerjee started residing in the suit house as licensee. After

the demise of Labanya Banerjee the defendant and his brother and sister

acquired the property by way of inheritance. The plaintiffs illegally kept

three rooms on the first floor of the house under lock and key. It is

contended further that no attempt was made by the defendant to

dispossess the plaintiffs in any manner whatsoever.

Considering the pleadings of the parties learned Trial Court framed

seven issues and was pleased to answer the issues in favour of the

plaintiffs consequently the suit was decreed but in part. Without granting

any decree for declaration about the status of the plaintiffs as

beneficiaries, learned Trial Court restrained the defendant from disturbing

or interfering with and or obstructing the peaceful possession of the

plaintiff in the suit premises, until evicted by due process of law.

Being aggrieved by and dissatisfied with such judgement and decree

the defendant preferred this appeal.

Assailing the impugned judgement Mr. Suddhasatva Banerjee learned

Advocate for the appellant submits that learned Trial Court passed the

impugned judgement without considering the evidence on record. Learned

Trial Court had no reason to hold that the plaintiffs/respondents were

inducted as tenant by Labanya Banerjee in respect of the suit premises,

when as a matter of fact, the plaintiffs trespassed into the suit house.

Refuting such contention learned Advocate for the respondents

submits that the plaintiffs admittedly are in possession of the suit

property as tenant under the erstwhile landlady Labanya Banerjee. The

defendant/appellant also admitted such status of the plaintiff no. 1 while

adducing evidence. Exhibit-3 the tenancy agreement is eloquent on the

status of the plaintiff no. 1.

Drawing our attention to the cross-examination of PW 1 Samir

Kumar Ghosh, learned Advocate for the respondent submits that the

tenancy of the plaintiffs/respondents is admitted by the

defendant/appellant who stated that tenancy is limited to two rooms on

the ground floor. PW 1, Samir Kumar Ghosh during cross-examination

stated "It is true that my tenancy is limited to said two rooms on the

Ground Floor. Our Landlady - Labanya Prava Banerjee died in the month

of December, 2006." So is the evidence of PW 2. Mr. Banerjee, learned

Advocate for the respondent submits that learned Trial Court was justified

in granting part decree, pending the probate proceeding. Though, it is fact

that Labanya Banerjee bequeathed her property by executing a Will, so

long probate proceeding is pending it cannot be declared that the plaintiffs

are the beneficiaries in respect of the suit property.

Upon perusal of the evidence on record we find that the status of the

plaintiffs particularly plaintiff no. 1 Samir Kumar Ghosh has been

established as tenant in respect of ground floor of suit house. It has now

become settled principle of law by several judicial pronouncement that

possession howsoever illegal must be protected till the occupant is evicted

by due process of law.

Here in this case Exhibit-3 the tenancy agreement together with

Exhibit-1 the rent receipt inspire confidence in us to hold the plaintiff no.

1 is the tenant and he has been possessing the suit property together with

his family members as tenant. Such possession deserves protection so

long they are not evicted by due process of law.

Under such circumstances, we do not find any reason to interfere

with the impugned judgment. The appeal is not accepted being devoid of

merit.

Consequently the appeal stands dismissed.

Department is directed to send down the Lower Court Records

immediately.

Urgent Photostat certified copy of this judgement, if applied for,

should be made available to the parties upon compliance with the

requisite formalities.

I agree

(Siddhartha Roy Chowdhury, J.)

(Soumen Sen, J.)