Smt. Usha Barua vs Amarendra Chakraborty & Anr
2023 Latest Caselaw 6068 Cal

                    IN THE HIGH COURT AT CALCUTTA

                     CIVIL APPELLATE JURISDICTION

                                 APPELLATE SIDE



Present:
THE HON'BLE JUSTICE HARISH TANDON
         &
THE HON'BLE JUSTICE PRASENJIT BISWAS


                               S.A.T 18 of 2023
                              CAN No. 1 of 2023



                             Smt. Usha Barua
                                   Vs.
                       Amarendra Chakraborty & Anr.


Appearance:

For the Appellant                :    M r. Tanmoy M ukherjee, Adv.

                                      M r. Souvik Das, Adv.

                                      M r. K. R. Ahmed, Adv.

                                      M r. Rudranil Das, Adv.

For the Respondent           :        M r. Sandip Ghosh, Adv.

M r. Debayan Ghosh, Adv.

Judgment On                      :    12.9.2023

PRASENJIT BISWAS, J.:


1.   Both   the     courts   below   have   decided   the   case   against   the

     appellant/tenant.

2. Plaintiff filed the suit against the original tenant Kishore Chatterjee for

eviction from the tenanted premises who died on 13.06.2011 and

thereafter his wife Smt. Maitrayee Chatterjee also died on 17.01.2012

leaving no heirs/legal representatives. The said Kishore Chatterjee

allowed this appellant to reside in the suit flat on oral permission

although she is nothing but an outsider and stranger. The appellant

had been using the same for commercial and non-commercial

purposes by setting up office of one Nari Nirjatan Pratirodh Mancaha

ignoring the objection of the respondents.

3. The appellant denied all the allegations as made out against her and

claimed to be the foster daughter of the original tenant Kishore

Chatterjee (since deceased) and claimed that on the demise of the

original tenant and his wife the tenancy has been devolved upon her

and her occupation in the tenanted premises is not unlawful rather

she is a tenant under the respondents/landlords.

4. Although this appellant claimed herself to be tenant under the

respondents but she failed to show any scrap of paper that she was

tenant being foster daughter of the original tenant Kishore Chatterjee.

During trial some civil deposit challans have been marked as exhibit A

in favour of the appellant but mere deposit of challans do not qualify

this appellant as tenant under the respondents.

5. Let us now consider as to whether this appellant could have inherited

the said tenancy by virtue of the provision of Section 2(g) of

the West Bengal Premises Tenancy Act, 1997.

6. Section 2(g) of the West Bengal Premises Tenancy Act, 1997 is set out

hereunder:

"2(g) "tenant" means any person by whom or on whose account or behalf the rent of a ny 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 da te 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 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 da te of his death as members of his family, and were dependant on him or a person authorised 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."

7. Section 2(g) clearly states in no uncertain term that in the event of

death of any tenant, the heirs who were ordinarily living with the

tenant up to his death as a member of his family could get the benefit

of 5 years to remain in possession of the property in question as heirs

of the deceased tenant and not thereafter. We are of the opinion that

learned trial judge has rightly referred to section 2(g) of the West

Bengal Premises Tenancy Act, 1997 in order to ascertain the right of

the appellant. Apart from the disability of claiming any interest as

tenant and the period of five years from the date of death of original

tenant appellant is also required to establish that she was ordinarily

residing with the original tenant. So, the initial onus is upon the

appellant to prove that she is eligible to continue as tenant.

8. Original tenant Kishore Chatterjee was died on 13.06.2011 and his

wife Maitrayee Chatterjee was expired on 17.01.2012 and there is no

dispute about their death. It is also undisputed that Kishore and

Maitrayee Chatterjee left no heirs but the appellant allegedly remained

in the suit premises in the status of trespasser. If we pause for a

moment and take the defendant No. 2 to be the foster daughter of the

original tenant, even in such case the defendant cannot claim to be

tenant after expiry of five years of death of original tenant as per

provision of section 2(g) of the West Bengal Premises Tenancy Act.

9. It is the specific case of the plaintiff that the said original tenant

Kishore Chatterjee and his wife illegally allowed this appellant to live

in the suit flat on oral permission and she is using the suit premises

as outsider and stranger. This appellant has failed to discharge the

burden of proving the existence of relationship of tenant and landlord

in between them. The appellant claimed tenancy right through the

original tenant Kishore Chatterjee being his foster daughter and if she

would have been the foster daughter of the original tenant then this

fact certainly would have been well within their knowledge. The said

tenant Kishore Chatterjee never claimed this appellant as his foster

daughter. After the death of Kishore Chatterjee his wife Maitrayee

Chatterjee entered into the suit but she also never claimed this

appellant to be their foster daughter. The claim of this appellant to

continue as a tenant in the suit premises is solely based being the

foster daughter of the original tenant. Surprisingly enough when

Maitrayee Chatterjee was substituted in place of her husband/the

original tenant she never claimed that this appellant is also required

to be substituted along with her and this appellant claimed to be the

tenant in respect of the suit premises only when she was added as a

party after the death of wife of the original tenant.

10. In this case plaintiff/respondent had filed suit praying for eviction

against the original tenant Kishore Chatterjee and after his death his

wife was substituted in the suit. Subsequently, wife of the original

tenant died and as they have no heirs/legal representatives, the

Administrator General was impleaded for representing the State of the

respondent. When the title of the plaintiff/respondent is not disputed

then the appellant cannot account to her remaining in the property

when she does not claim any independent title over it. We have

already held that the appellant has been failed to prove her tenancy

right over the suit property then only thing is left that she is either a

trespasser or a licensee. When the appellant tried to establish herself

as a tenant but failed to prove so then logical inference would be that

she is a trespasser. So, the courts below have rightly come to the

conclusion that the appellant is not a tenant under the

respondents/plaintiffs but she is a trespasser. When the appellant

tried to establish as the tenant in respect of the suit premises but

failed to establish so, then the courts below is right to hold her as a

trespasser and accordingly the respondent/plaintiff is entitled to

decree for khas possession.

11. We, thus, do not find any merit in the instant appeal nor any

involvement of substantial question of law. The appeal is dismissed.

12. The appellant is given six weeks time to vacate the suit premises

and/or to give up and deliver the vacant and khas possession of the

suit premises to the plaintiffs/respondents, in default, the

plaintiffs/respondents will be entitled to recover the vacant and khas

possession of the suit premises by evicting the appellant from the

respective suit premises through execution in accordance with law.

13. Consequently, connecting applications if any are hereby dismissed as

disposed of.

14. There shall, however, be no order as to costs.

15. Urgent Photostat certified copies of this order, if applied for, be made

available to the parties subject to compliance with requisite

formalities.

I agree.

(Harish Tandon, J.)                                     (Prasenjit Biswas, J.)