Calcutta High Court (Appellete Side)
Purnima Das & Ors vs Saraswati Bhadra & Ors on 9 February, 2023
52 09.02.2023 SAT 144 of 2016
D Hira
Ct-08
Purnima Das & Ors.
Vs.
Saraswati Bhadra & Ors.
The appeal is defective. No attempt has been
made to remove the defects.
This matter is appearing in the list since 6th
February, 2023.
The appellate judgment and decree dated 28th
January, 2015 and 29th January, 2016 affirming
the judgment and decree dated 20th December,
2006 by the Trial Court in a suit for eviction of a
licencee is the subject matter of challenge in this
second appeal.
The appellants are the defendants in the suit.
We have carefully read the judgment of the Trial
court and Appellate Court. We have also read the
grounds of appeal.
The plaintiff filed the suit for eviction of a
licencee.
Briefly stated, Krishna Mohan, the predecessor
interest of the present plaintiffs, was the original
owner of the suit property. After her demise on 4th
February, 2008 Jatindra inherited the property as
the only legal heir. The plaintiffs 1 to 3 are the
wife, son and daughter of Jatindra. The other
daughters of Jatindra are untraceable since 3rd
January, 1989. During his lifetime in 1962
Jatindra permitted the defendant to reside in the
suit premises due to his pre-acquaintance wth
Jatindra without any licence fee. After demise of
Jatindra on 4th December, 1998 the license
automatically stands revoked and the occupation of
the defendant beyond the aforesaid time is
unauthorized.
2
In spite of service of notice, the defendant did
not leave the premises. Accordingly, the plaintiff
filed a suit for eviction. The defendants in the
written statement have contended that they have
been inducted as a tenant in the suit premises at a
rent of Rs.45 per month. On the request of
Jatindra, they released one room and the rent was
increased from Rs.45 to Rs.70 per month.
Krishna Mohan used to take rent without giving
any rent receipt but the payment of such rent is
unusually recorded in an exercise book and after
the demise of Krishna Mohan, Jatindra followed the
same procedure. In fact, they claimed the tenancy
from the time of Krishna Mohan. In 1997, the
defendant demanded rent receipts from the plaintiff
and sought for permission to repair one room. The
plaintiff Bhola nath however, refused to give such
permission and asked them to leave the premises.
On 18th January, 1998 they tendered the rent
through money order and it was received by Bhola
Nath. Subsequently, on 13th March, 1998 again the
rent was tendered by money order but it was
refused. On the basis of the pleadings the trial
court framed six issues. The main contention of the
appellants was that the money order and postal
receipt marked as exhibits D and D/1 and the
letter of the advocate dated 10th February, 1998
would show that they are tenants. The appellant
have been depositing the rent regularly since then
before the Rent Controller in HRs vide case no.50 of
1998. The defendants claimed themselves as
tenants.
Both the witnesses on behalf of the plaintiff
denied acceptance of any amount by Jatindra or by
them. The appellants failed to prove the money
receipt. In view of the fact that the plaintiffs have
3
been able to establish their title in the suit
property. It is for the defendant to prove the
character of the possession. The trial Court in this
regard has relied upon the decision of our Court in
Juthika Basu & Ors. vs. Lt. COL. A. N. Sharma
reported in 96 CWN 923. In Juthika Basu (supra)
the Hon'ble Judges of the Division Bench gave
separate but concurring judgments.
Justice B.P. Banerjee as His Lordship then was
in paragraphs 4 and 7 has observed that the
"Burden of proof lies upon the party who
substantially asserts the affirmative of the issue.
As against the case of the landlord appellant that
the defendant-respondent was a licensee, the
respondent's version being that he was not a
licensee but a tenant protected under the
provisions of the West Bengal Premises Tenancy
Act, 1956, he had to prove his case by adducing
evidence in support of his case.
Where a given allegation, whether affirmative or
negative, forms an essential part of a party's case,
the proof of such allegation rests on him.
In order to establish a case of tenancy, one has
first to prove the induction of the tenancy and the
terms and conditions thereof. Secondly, in order to
establish such a case, there must be privity of
contract between the landlord and the tenant and
according to the definition of the word "landlord"
any person, who is entitled to receive rent, whether
or not on his own account, can be treated to be a
landlord.
A licence may be granted with or without fees.
Mere occupation of a premises without payment
of rent is no proof of any tenancy.
To ascertain whether a lease or licence has been
created, the substance of the matter has to be
looked into. If the defendant respondent claimed to
be a tenant, he was to discharge the initial onus by
proving that the intention of the parties was to
create a tenancy and the most important incidence
in the tenancy is payment of rent. But the absence
of payment of rent has clearly negative the
existence of a relationship between the landlord
and the tenant.
Justice A.K. Bhattacharjee in his Lordship's
concurring judgment in paragraphs 11 and 12 has
observed that When the plaintiff proves his title to a
property and seeks to evict the defendant from the
said property treating him to be a licensee, the
onus of proving the right to stay on the property is
upon the defendant who asserts such right. In such
a case, the onus is absolutely on the defendant to
prove that he is a tenant.
The easiest way to prove the existence of a
tenancy is to produce the rent receipts and/or any
co-lateral document showing the creation of the
tenancy. Where no document creating tenancy was
proved, no rent receipt granted by the landlord
could also be proved though possession was
claimed from as far back in 1976 and on
explanation was not forthcoming why rent receipts
were not granted by the landlord and the tenant did
not insist upon obtaining it, prima facie the
defendant-respondent had not discharged the
onus.
In the instant case, the first appellate court has
rightly applied the said principles in affirming the
judgment and decree of the trial court.
The stand of the appellants is also inconsistent.
The observation of the appellate Court in this
regard is reproduced below:
"In our case, the defendant /appellant claimed
that since 1977 he has been possessing the suit
premises a tenant except releasing of one room in
favour of Jotindra Mohan when she inherited the
suit premises. It has been claimed by the
defendant/appellant that Jatindra Mohan took
rent by writing the same in an exercise book and
in-spite of that he tendered his rent on
18.01.1998 through money order which was
received by Bhola Bhadra and again he tendered
rent on 03rd February, 1998 (sic) which was
returned by Bhola Bhadra. Neither he stated
what permitted him to tender rent through money
order on 18.01.1998 nor he stated in which
manner he tendered alleged rent on 13.03.1998
which was refused allegedly by PW2 and he also
did not produce the extract of record of HRS vide
no. 50 of 1998".
Interestingly, appellants could not prove how
the rent was tendered on 13th March, 1998. Even if
it is assumed that appellants were tenants they
need to prove that there was valid tender of rent
and on refusal rent was sent by money order.
The concurrent findings of the fact, with regard
to the status of the appellants in the suit premises,
based on cogent evidence and proper appreciation
of facts and law. On such consideration we do not
find any reason to admit the appeal.
The appeal is dismissed.
(Uday Kumar, J.) (Soumen Sen, J.)
