Subrata Sarkar vs Mousumi Nandy
2023 Latest Caselaw 5346 Cal

23.08.2023                               IN THE HIGH COURT AT CALCUTTA
                                          CIVIL APPELLATE JURISDICTION
                                                 APPELLATE SIDE
Court         : 04
Item          : 28
Matter        : SAT
Status
Bench ID
              : DISMISSED
              : 266147
                                                  SAT 69 of 2023
Transcriber   : NANDY                             CAN 1 of 2023

                                                  Subrata Sarkar
                                                       Vs.
                                                  Mousumi Nandy

                            Mr. Debdutta Basu, Advocate
                            Mr. Sudip Sarkar, Advocate
                                                                  ......for the Appellant

                            1. The plaintiff/respondent filed a suit for recovery of

possession against the present appellant treating him as a trespasser. It is averred in the plaint that the plaintiff acquired right, title and interest in respect of the suit premises by dint of purchase on 22.11.2007 from the heirs of the admitted owner. It is further averred that one Manik Nath Sarkar was the original tenant in respect of a room situated within the suit premises duly inducted by the predecessor-in-title by the plaintiff/respondent. After his demise all the heirs and legal representatives approached the said admitted owner for issuance of the rent receipts in the name of his wife namely Renu Sarkar who undertook to pay arrear rents and future rents but subsequently, she decided by showing her inability to pay the arrear rent and surrendered the tenancy or right whatever had been created upon her by handing over the possession and started living in another accommodation. Since the said property remained in a dilapidated condition and unoccupied, the defendant along with his wife started occupying the said property without any title thereto.

2. After the purchase of the suit property, the appellant requested the plaintiff/ respondent to continue in possession and to vacate as and when asked for. The notice was issued upon the appellant to vacate the premises and having failed to do so, the suit was filed for recovery thereof.

3. The appellant took a defence that the plaintiff/respondent have not acquired any right, title and interest in respect of the suit premises and is merely a ranked trespasser. The plea of tenancy of father was also taken and, in fact, the rent receipt in his name was also tendered in evidence. It is further alleged that one of the tenants intended to vacate the premises upon receiving premium and the predecessor of the plaintiff being unable to pay the said amount, the appellant paid the same on an understanding that the entire property would be sold to him. Apart from the same, the plea of inheritance of the tenancy was also taken as a defence in the written statement.

4. On the basis of the aforesaid stand taken by the parties, several issues were raised including the issue relating to the status of the appellant as trespasser.

5. The Trial Court held that the plaintiff/ respondent is the owner of the property by virtue of the deed of conveyance executed in his favour by the admitted owners and the defendant/appellant has no semblance of right, title and interest either as a tenant or as a co-owner in respect thereof and ultimately decreed the suit. The Appellate Court while concurring with the judgment of the Trial

Court held that the defendant/appellant failed to produce any document relating to creation of a tenancy in respect of the suit property nor he has been able to seek for specific performance of a alleged contract for sale by filing the counterclaim.

6. Learned Advocate appearing for the appellant, vociferously submit before us that both the Courts have miserably failed to take into account the rent receipts issued by the admitted owner in favour of his father and surreptitiously jumped to the conclusion that the defendant/appellant is a trespasser. It is further submitted that having not considered the material documentary evidence, the judgment of both the Courts below are perverse and, therefore, it raises a substantial question of law to be decided in the instant appeal.

7. We are unable to accept the contention of the appellant in this regard as we find that the aforesaid rent receipts which were marked exhibits in the suit were taken into account by both the Courts below and ultimately found that it would not enure to the benefit of the appellant, more particularly, touching upon the issue of devolution of tenancy right in him. Admittedly, the father of the appellant died prior to coming into force of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as 'the said Act') which came in effect on and from the 10th day of July, 2001. The definition of a tenant under Section 2(g) of the said Act has gone a radical change from the definition given under the West Bengal Premises Tenancy Act, 1956. The tenant is defined as:-

"2(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 2 [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 dependent on him or a person authorized 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 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, "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 dependent on him". 2 Provided further that the son, daughter parent or the widow 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 for tenancy in a fresh agreement in respect of such premises 1 [on condition of payment of fair rent]. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose.

8. It appears from the definition of a tenant engrafted in the aforesaid quoted provision that in the event, the tenant dies, the spouse, son, daughter, parents and the widow of the predecessor shall be regarded as a tenant for a period not exceeding five years from the date of the death of such tenant or from

the date of coming into force of the said Act provided they were ordinarily living with the tenant upto the date of his death as a member of his family and were dependent upon him and do not own or occupy any residential premises. However, the proviso appended thereto carved out an expression that the said time limit of five years shall not apply to the spouse of a tenant who was ordinarily living with the tenant upto the date of his death as member of his family and were dependent upon him and do not own and or occupy any residential premises.

9. As indicated above, the original tenant died prior to coming into force of the said Act and in view of the definition as quoted hereinabove, the right to remain in occupation as a tenant is restricted upto a period of five years subject to fulfilment of the conditions enshrined therein in relation to a appellant being admittedly the son of the deceased tenant.

10. Though feebly, it is submitted by the learned Advocate for the appellant that the suit ought to have been filed under the provisions of the West Bengal Premises Tenancy Act, 1997 but in view of the definition of a tenant under Section 2(g) of the said Act, it does not appear to us tenable.

11. The provision relating to eviction of a tenant under the aforesaid Act is applicable in relation to eviction of a tenant who satisfies the definition of a tenant engrafted therein and cannot be extended to a person who has been kept outside the purview of the said definition. A person who is not regarded as

a tenant cannot be evicted taking recourse to the provisions contained in the said Act as recovery can be sought under the general law applicable in this regard.

12. Furthermore, both the Courts below have concurrently held that the creation of a tenancy in favour of the appellant has not been substantiated by any documentary evidence. Not a single rent receipt was produced by the appellant in support of his stand that the admitted owner agreed to create a tenancy in his favour. The tenancy can be presumed only upon the payment and acceptance of rent and the rent receipt is one of the primary documents in this regard. Since the appellant has miserably failed to prove that he made the payment of a rent to the admitted owner i.e. the predecessor- in-title of the present plaintiff/ respondent nor he could produce rent receipts evincing the payment of the rent, the plea of creation of a tenancy in his favour has been discarded by both the Courts below. Therefore, such concurrent findings of fact based on cogent reasons do not invite any interference.

13. Another plea that a sum of Rs.70,000/- (Rupees Seventy thousand only) was paid to the admitted owner on a stipulation that the property would be sold to him has also not been substantiated by any documentary evidence. The said stand appears to have been diminished when the defendant/appellant himself during the cross- examination said that he tendered the rent to the plaintiff after he acquired the right, title and

interest in respect of the property and upon refusal, started depositing the same before the rent controller. Such a stand negatived the stand of acquiring an ownership on the basis of an agreement and, therefore, we do not find any perversity in the findings returned by both the Courts below.

14. Obviously, the moment a person has entered into an agreement for purchase of the property and a possession in lieu thereof has been given, it is inconceivable and improbable that he would tender the rent and treat his status as a tenant in respect thereof.

15. Learned Counsel for the appellant is very much critical on the observations of the Appellate Court that the counterclaim was not filed which, in our opinion, has to be read in the context in which it is used. The aforesaid observation was made on the allegation of the appellant that there was an agreement between the admitted owner and him to transfer the suit property and in such perspective, it was held that a counterclaim should have been made in the form of a decree for specific performance and having not done so, it is too late in a day to accept the contention of the appellant.

16. The moment both the Courts found that the appellant has no semblance of right, title and interest either independently or through his father who was admittedly the tenant having died prior to coming into force of the said Act, we do not find any impediment on the part of the plaintiff/respondent to get a decree for recovery of possession treating

the appellant as a trespasser or a person having no authority to remain in occupation.

17. So far as the notice is concerned, both the Courts have found that the appellant has admitted to have knowledge of the said notice and in his cross- examination categorically admits that he refused to accept the same. Since the refusal amounts to a valid service, the suit on the basis of the notice cannot be defeated.

18. We do not find that there is any involvement of a substantial question of law in the instant second appeal.

19. The second appeal, being SAT 69 of 2023 is thus dismissed at the admission stage. No order as to costs.

20. The connected application being CAN 1 of 2023 also stands dismissed.

(Harish Tandon, J.)

(Ajay Kumar Gupta, J.)