Sri Shiv Kumar Gupta & Anr vs Smt. Bimla Debi Dugar & Ors
2023 Latest Caselaw 654 Cal

05      20.01.2023                    FAT 27 of 2018
                                              with
Ct-08                                 I.A No. CAN 3 of 2022

                                  Sri Shiv Kumar Gupta & Anr.
                                              Vs.
                                  Smt. Bimla Debi Dugar & Ors.
ar

                        Mr. Dhiraj Trivedi
                        Mr. Bikash Kumar Singh
                        Mr. Sunil Gupta
                        Ms. Swapna Jha
                                    ... For the Appellants

                        Mr. Mainak Bose
                        Mr. Gautam Das
                        Mr. Sandeep Kumare Tiwari
                        Ms. Madhumita Patra
                                   ... For the Respondents.

The appeal is arising out of a judgment and

decree dated 21st December, 2017 in a suit for

eviction on expiry of the lease period.

Briefly stated that the father of the appellants

was a lessee under an indenture of lease dated

9th January, 1963 at a monthly rent of Rs.151/-

payable according to Hindi month beginning

from Badi 1st of month and ending Sudi 15th of

the same month. On the expiry of the period of

lease the suit originally filed for eviction on the

ground of forfeiture was amended to include

determination of lease by effective of time. The

service of notice determining the lease earlier is

not in dispute. According to the plaintiffs, due to

breach of lease conditions, initially, on 8th day of

Sraban S.Y 2033 and thereafter on and from 12th

October, 1978 the lease dated 9th January, 1963

was determined and thereafter on expiry of 18th

January,1984 when the lease came to an end by

efflux of time. The relationship of lessor and

lessee stood determined.

It appears from the pleadings of the plaintiffs

as well as from the evidence that the lease was

determined by serving notice in the year 1978.

Subsequently, the plaintiffs filed an application

for amendment of the plaint during the pendency

of the suit in order to introduce the factum of

expiry of the lease as an additional ground for

eviction.

Mr. Dhiraj Trivedi, learned counsel

representing the appellants, has strenuously

argued that the suit was filed in suppression of

an earlier lease dated 3rd September, 1960 and if

the two lease deeds are considered it can be

easily ascertained that the schedule of the two

lease deeds are different. It is the submission of

Mr. Trivedi that the lease agreement of 1963 was

never acted upon. These facts were relevant but

not considered by the trial court.

Mr. Trivedi further has argued that since the

lease deed was never acted upon, the

relationship of the plaintiffs and the defendants

continued to remain as landlords and tenants

and the tenancy is not determinable by effective

of time serving of notice under the provisions of

the Transfer of Property Act.

Mr. Mainak Bose, learned counsel

representing the respondents, submits that it is

a clear case of determination of lease by efflux of

time and the appellants having accepted due

execution of the lease deed cannot now resile

from the same and make out a case of mere

landlord and tenant relationship disregarding the

terms of lease.

It is further submitted that the lease dated

9th January, 1963 is a registered document and

the said document was acted upon. Mr. Bose

submits that the essential terms of the lease

deed were acted upon. Initially the suit was filed

for breach of the lease term in the year 1979 but

during the pendency of the suit, the lease term

had expired and on expiry of the lease period the

additional ground was taken for eviction by way

of amendment.

Mr. Trivedi in reply has stated that the

description of the two suits' schedules are vague

and although the appellants may not have

disputed the existence of the lease deed, it is a

clear evidence of the appellants that the said

deeds were never acted upon.

We have heard the learned counsel appearing

for the parties.

It is true that the deed of 1963 was preceded

by a deed of 1960. However, the fact remains

that the defendants have accepted the execution

of the lease deed dated 9th January, 1963 and

had paid rent and discharged all their duties and

obligations as mentioned in the subsequent lease

deed. Although, in the deed of 1963 there was

no reference to the deed of 1960 but it was

clearly discernible from the conduct of the

parties that they have accepted the deed of 1963

as final and acted upon on the basis thereof. It

is not in dispute that the defendants have paid

rent at the rate of Rs.151/- and was in

possession properties described in schedule in

terms of the deed i.e. 9th January, 1963.

The appellants were under no misconception

about the nature, character and extent of the

present tenancy. The appellants have accepted

that the areas mentioned in the subsequent

lease deed of 1963 is the area under this

occupation. This fact clearly established that

the parties have acted upon on the basis of

subsequent lease deed dated 9th January, 1963.

The notice of forfeiture was issued on 12th

October, 1978 clearly mentioning the breach of

the lease term and condition mentioned in the

lease dated 9th January, 1963. There is no

contemporaneous document or evidence to show

that the defendants ever had raised any

objection that the relationship is not to be

governed by the 1963 document or there is no

existence of any lease by and between the

parties. Moreover, the arguments made by Mr.

Trivedi that the terms and conditions mentioned

in the registered instrument were never acted

upon does not come within any of the proviso of

Section 92 of the Indian Evidence Act. When the

terms are reduced in writing and it is a

registered document enforceable in law parole

evidence to contradict, the terms are clearly

excluded unless it falls within any of the proviso

of Section 92 of the Indian Evidence Act,

meaning thereby that oral evidence for the

purpose of contradicting, varying, adding to or

subtracting from the agreed terms would be

limited to the circumstances mentioned in the

six proviso of Section 92 and it has to establish

by the appellants.

There was no evidence before the trial court

to establish that the parties have abandoned the

agreed terms and had agreed to continue with

the relationship as landlord and tenant. The

onus heavily lies upon the appellants to lead

evidence with regard to any separate oral

agreement to bring their case under the proviso

of Section 92 of the Indian Evidence Act and in

absence of any such evidence being led or

established during the trial the court would be

extremely reluctant to accept a case or a term

contrary to the written terms agreed by and

between the parties reduced in writing and duly

registered in accordance with law.

Mr. Trivedi has placed few additional grounds

for consideration of this court. The principal

ground taken was that in absence of any

surrender of tenancy in compliance of Section

19(2) of the West Bengal Premises Tenancy Act,

1956, which was mandatory, then even

assuming that the predecessor of the appellant

executed alleged lease deed voluntarily said lease

deed was not lawful and is inoperative in the eye

of law.

In the instant case, the provision of the West

Bengal Premises Tenancy Act, 1956 is not

attracted by reason of Section 3 of the West

Bengal Premises Tenancy Act, 1956. It was a

lease admittedly entered into after 1st December,

1948 and for a period more than 20 years. If we

accept the submission of Mr. Trivedi that 1960

lease was in operation, it was for a period of 21

years and if the relationship of the parties are to

be governed by the lease of 1960 even then it is

excluded from the purview of the West Bengal

Premises Tenancy Act, 1956 by reason of Section

3 of the said Act.

Under such circumstances, we are unable to

accept the submission of Mr. Trivedi and affirm

the decree under appeal.

The appeal accordingly fails and is hereby

dismissed along with CAN 3 of 2022.

There will be no order as to costs.

(Uday Kumar,J.)                    (Soumen Sen, J.)