Calcutta High Court (Appellete Side)
Ct. 8 vs Atindra Kr. Bhattacharjee & Anr on 23 March, 2023
SAT 40 of 2015
Item-51.
23-03-2023
sg Aniruddha Dasgupta & Anr.
Ct. 8
Versus
Atindra Kr. Bhattacharjee & Anr.
The matter initially appeared in the warning list on 29 th
November, 2022 and thereafter transferred to the regular list on 5 th
December, 2022. There was a clear indication in the list that the
matter shall be transferred to the daily cause list on 5th December,
2022 and since then the appeal is appearing in the list. In spite of
having due notice and knowledge that the matter is pending, the
appellants are not represented. The appellants have also not taken
any step to remove the defects as notified by the Stamp Reporter on
11th February, 2015. It is clear that the appellants are not interested
to proceed with the matter.
We could have dismissed the appeal for non-removal of the
defects. However, we propose to have a look at the judgments of
both the courts in order to find out whether the second appeal
involves any substantial question of law.
The appeal is arising out of a judgment and decree dated 6th
December, 2014 passed by the learned Civil Judge (Senior
Division), 4th Court, Alipore affirming the judgment and decree
dated 21st December, 2013 passed by the learned Civil Judge
(Junior Division), 4th Court at Alipore, in a suit for eviction of the
appellants from the suit premises.
In the absence of the judgment and decree of the trial court,
we are left with no option but to consider the judgment of the first
appellate court and the grounds of appeal.
2
From the judgment it appears that originally one Debabrata
Dasgupta was tenant under Satyendra Kr. Bhattacharjee and on his
death, his wife Kshama Dasgupta became monthly tenant in respect
of the suit premsies as his son namely Aniruddha Dasgupta and two
daughters namely, Nandini Dasgupta (Sen Sharma) and Nandita
Majumder executed a letter of relinquishment in favour of landlord
and surrendered their tenancy and as such, on death of Debabrata
Dasgupta, Kshama Dasgupta became the sole tenant.
That said Kshama Dasgupta died on 01.02.2011 and on her
death, notice was issued upon the present appellants and proforma
defendant for vacating the suit premises and event upon issuance of
such notice they did not quit and vacate the suit premises for which
the present respondent who became owner of the suit premises on
death of Satyendra Nath Bhattacharya had filed a suit before Ld.
Civil Judge (Jr. Divn.), 4th Court, Alipore and the said suit has been
numbered as Title Suit 1379 of 2011 was tried before Ld. Civil
Judge (Jr. Divn.) 4th Court Alipore and the same was decreed on
contest.
The appellants however, claimed that they never surrendered
the tenancy in favour of the landlord although they were common
tenant with their mother Kshama Dasgupta and they had contributed
money towards payment of the monthly rent and they never issued
any relinquishment letter or deed in favour of the landlord and the
document filed by the landlord as relinquishment letter of the
appellants was obtained by undue influence and coercion and as
such, the same is not legally valid.
It appears from the evidence that the plaintiff was able to
prove his ownership by virtue of a final decree of partition passed in
T.S. No. 2435 of 2008 and the certified copy of the final decree
along with the sketch map has been proved by the plaintiff (Ext. 5).
It also transpires form the evidence on record that the plaintiff's
family consist of himself, his wife and his son and the plaintiff and
his family members have been forced to live in a portion allotted to
his younger brother in the second floor. To prove the total strength
of his family members the plaintiff had proved the voter identity
card of his family members (Ext. 8). While proceeding with the
suit, the defendants therein could not bring any material on record
from which it can be ascertained or even remotely suggested that
the plaintiff has any other accommodation elsewhere. Therefore, the
Trial Court observed that the point for reasonable requirement of
the suit premises as claimed by the plaintiff has been proved and
thus, the issue was decided in favour of the plaintiff.
The proforma respondent who was the defendant no.3 in the
original suit did not contest the suit. The defendant no.3 neither
entered appearance nor did contest the suit by filing written
statement. In his evidence, the appellant no.1 as DW 1 has stated
that his father Late Debabrata Dasgupta was a monthly tenant in
respect of the suit premises under Satyendra Kr. Bhattacharya, the
father of the plaintiff and on death of his father on 8 th May, 1996,
he, his sister appellant/defendant no.2 and their mother were
residing with their father. His other sister the defendant
no.3/proforma respondent herein used to reside in her matrimonial
home. He submitted that after the demise of their father, he, his two
sisters and his mother became joint monthly tenants in respect of
the suit premises. The rent receipt was granted in favour of
defendant no.1 as she was the eldest member of the family after
demise of their father. He and his two sisters i.e. defendant nos.2
and 3 had exercised their right of tenancy firstly, along with their
mother and after the demise of their mother, by the defendants
themselves as because they never surrendered their right of tenancy.
The defendant contended that the letter of surrender was obtained
by misrepresentation. The said document being Exhibits 3 and 4
were drafted and prepared by Satyendra Kr. Bhattacharjee and he
managed to get the signature of his mother on the said letter and
managed to get the signature of the defendant on the said
declaration by undue influence as well as intimidation. The mother
of the defendants was a was a school teacher. DW-1 is a
government servant. His to sisters are both school teachers and all
of them are highly qualified and educated persons.
The learned Trial Judge having regard to their academic
background disbelieved that they singed the document being
Exhibit 4 without knowing the contents therein. Moreover, the
appellants failed to plead any prove of coercion and undue
influence.
It is trite law that the onus lies on the appellant to prove the
said fact. In fact, DW-1 had admitted that he did not lodged any
complaint or diary before any authority against such alleged act and
undue act of coercion. Once exhibits 3 and 4 are admitted, the
appellants have no case to answer.
In view of the aforesaid observation, the appeal stands
dismissed.
(Uday Kumar, J.) (Soumen Sen, J.)
