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Sriram Pasrisha Vs. Jagannath Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 1524 of 1970
Judge
Reported inAIR1974Cal80,(1973)77CALLT613(HC)
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantSriram Pasrisha
RespondentJagannath Sen and ors.
Appellant AdvocateChandra Nath Mukherjee and ;Gopal Chandra Mukherjee, Advs.
Respondent AdvocateA.N. Mitra and ;Bijitendra Mohan Mitra, Advs. for Respondent No. 1
DispositionAppeal allowed
Cases ReferredIn Budhan Singh v. Babi Bux
Excerpt:
- .....letter. the tenancy was renewed at the said rate of rent and the tenant undertook to vacate the suit premises positively after 31st march, 1948. after the expiry of the said period he neglected to vacate and died on 18-2-60 leaving behind him the defendants as his heirs and successors who inherited the monthly tenancy. it was stated that the defendants were habitual defaulters in payment of rent and the deposits which were purported to have been made with the rent controller were illegal and invalid deposits. it was further stated that the plaintiff was the head of their big joint family of 18 heads and required the suit premises for his own use and occupation by himself and his family members for whose benefits and interests the house at 221/1, rash behari avenue was built......
Judgment:

Salil Kumar Datta, J.

1. This is an appeal by the defendants against a judgment of affirmance in a suit for recovery of possession on eviction of the defendants therefrom. The plaintiff's case is as follows: One Bhagat Ram Pasrisha was inducted as a monthly tenant in respect of the entire second floor of the premises No. 221/ 1, Rash Behari Avenue, P. S. Ballygunge at a monthly rent of Rs. 150/- according to the English calendar month since 1946, who thereafter promised to vacate the said premises within 31st March, 1947 by a written letter. The tenancy was renewed at the said rate of rent and the tenant undertook to vacate the suit premises positively after 31st March, 1948. After the expiry of the said period he neglected to vacate and died on 18-2-60 leaving behind him the defendants as his heirs and successors who inherited the monthly tenancy. It was stated that the defendants were habitual defaulters in payment of rent and the deposits which were purported to have been made with the Rent Controller were illegal and invalid deposits. It was further stated that the plaintiff was the head of their big joint family of 18 heads and required the suit premises for his own use and occupation by himself and his family members for whose benefits and interests the house at 221/1, Rash Behari Avenue was built. Accommodation was also necessary for the plaintiff's joint family business which was the mainstay of the joint family of the plaintiff. In this state of affairs as the plaintiff required the suit premises for all these purposes the defendants tenancy was determined by a notice dated 13th September, 1962 which was duly served calling upon the defendants to vacate the suit premises with the expiry of October, 1962. The defendants however failed to vacate and accordingly the plaintiff instituted the present suit on 18th December, 1962 praying for a decree for khas possession of the suit premises on evicting the defendants therefrom and also for damages and mesne profits. In the plaint it was stated that the plaintiff had previously instituted on 25-5-60 an ejectment suit for eviction of the defendants on the ground of own use and occupation, default and other grounds. This suit was dismissed on the ground of defect of parties as one heir of the original tenant was left out. An appeal was preferred against that decision and on plaintiff's application the said appeal as also the suit was withdrawn by order dated 26-7-62 and the plaintiff instituted the present suit in the circumstances stated above. The suit was contested by the defendants 1 and 2 who filed written statement contending inter alia that the suit was barred by res judicata, the plaintiff was not entitled to a decree for own use and occupation as he was not the owner nor was the premises held for the benefit of any other person. It was also denied that the defendants were defaulters in payment of rent. Accordingly, it was submitted that the suit should be dismissed. On a trial on evidence the trial Court held that the suit was not barred by res judicata but the deposits without tender were invalid. It was further held that the plaintiff failed to prove that he was the owner of the suit premises but it was established at the same time that the suit premises were required for the benefit of persons for whom it was held and their reasonable requirement was established. About the notice and its service there was no dispute. It was further held that the plaintiff had the right under the agreement to obtain vacant possession on expiry of March, 1948. Such right was waived by the plaintiff by subsequent acceptance of rent from the tenants. The suit however on the findings noted earlier was decreed. An appeal was preferred against this decision and the appellate Court held in agreement with the trial Court that the suit was not barred by res judicata. It was further held that the defendant was not a defaulter. The appellate court also held that the plaintiff held the suit premises for the benefit of others and was competent to institute the suit and obtain the decree. The reasonable requirement of the premises for occupation by the members of the family for whose benefit the property was held also found and the appeal was accordingly dismissed. The present second appeal is against this decision.

2. Mr. Chandra Nath Mukherjee, learned Advocate appearing for the appellant has urged three points in support of the appeal. His first contention is that the suit is barred by res judicata in view of the order passed in an earlier title suit filed by the plaintiff on the same cause of action. It appears that the plaintiff instituted a title suit for eviction of the defendants from the suit premises and that the suit was held to be bad for non-joinder of parties as the fifth daughter of Bhagal Ram deceased, who was a co-tenant of the suit premises was not made a party. Accordingly, the suit was dismissed on this ground and an appeal was preferred against that decision. In the appeal the plaintiff filed an application for withdrawal of the suit and appeal. On that application the appellate Court passed an order allowing the prayer on 26-7-62 which is as follows:

'No permission to sue afresh is prayed for. The prayer is allowed. The appellant is permitted to withdraw the appeal and the suit.'

Thereafter, the present suit was instituted on 18-12-62. Mr. Mukherjee contends that this suit was barred by res judicata as no leave was obtained and the case rested on the same cause of action namely reasonable requirement of the plaintiff and his family. Mr. Amarendra Nath Mitra, learned Advocate appearing for the plaintiff respondent disputed the above contention contending that the parties in the matters were not the same while the causes of action of the two suits were also different.

3. It would appear that the contention of the appellants on this point isuntenable in law. A suit for ejectment is dependent on the determination of a tenancy by a notice to quit as also of a notice of suit. After the dismissal of the earlier suit fresh ejectment notice to quit and of suit dated 13-9-62 was served on the defendants and this notice was the cause of action of the present suit while the reasonable requirement only formed a ground for eviction. Further the parties in the two suits were not the same. Accordingly, I am of opinion that the present suit is not barred by res judicata or by Order 23, Rule 3 of the Code of Civil Procedure as the right to the decree was different in the two suits on different causes of action namely different notices determining the tenancy and of suit.

4. The next point contended by Mr. Mukherjee relates to the question as to whether the plaintiff is the owner as contemplated in ground (f) since amended as (ff) of Section 13 (1) of the West Bengal Premises Tenancy Act. Mr. Mukherjee contends that the plaintiff is only a part-owner even on his own case and as such he would not be entitled to a decree under ground (f). The suit property stands in the name of the mother of the plaintiff and she had given evidence to say that she was only the benamidar of her husband who was the real owner thereof. On his death the property devolved upon his heirs and admittedly the plaintiff is one of the heirs of his father and as such he is only a part-owner of the suit property. Mr. Mukherjee contends that unless all the owners join in the suit as landlords, the decree will not be available by a part-owner under ground (f) now (ff) of Section 13 (1). Mr. Mitra on the other hand contended that a part-owner is also an owner and will be fully competent to institute the suit and obtain a decree on the above ground if it is established that the requirement is for all heirs and their families who are all in a joint family as in the instant case as found by the courts below. Mr. Mitra further contended that if the word 'owner' is not interpreted as including a co-owner it will never be possible for the co-owner to obtain a decree against the tenant on ground (ff) and he submitted that the court should give a harmonious interpretation which will subserve the purpose of the Act and not such interpretation which will frustrate the same and make the working of the provision an absurdity and impossibility.

5. Under Section 13 (1) a landlord is entitled to a decree for recovery of possession of any premises only on the grounds mentioned therein. Ground (f) now amended as (ff) in extracts is as follows:

'Where the premises are reasonably required by the landlord......... for hisown occupation if he is the owner or for the occupation of any person for whose benefit the premises are held.'

The landlord may not be the owner of the premises but if recovery of possession is sought for on the above ground, such landlord must be the owner of the premises. There is no qualifying word about 'owner' so that ownership as contemplated in ground (ff) must be its literal meaning and mean full and absolute ownership. It must be absolute ownership in quality and also full ownership in quantum. In Yogamaya Pakhira v. Santi Sudha Bose, ILR (1968) 2 Cal 70 it was observed:

'Owner should receive its ordinary connotation in the sense of meaning a person who has full and absolute ownership of the disputed property.'

It was accordingly held that even a permanent lessee was not an 'owner' of the premises and thus not entitled to a decree under ground (f) before amendment. The landlord must have absolute ownership of the premises in respect of the quality or nature of interest he has therein. He must also possess full interest of ownership in the premises in quantity and possession of such interests only will make the landlord an owner of the premises. It will not be sufficient if the reasonable requirement is of all members of the family of the co-owners but such co-owners must again be the landlords who only are made entitled to a decree for recovery of possession under Section 13 (1).

6. On the above interpretation, the plaintiff landlord as a part-owner of the property will not be entitled to a decree under ground (ff) of Section 13 (1). Mr. Mitra prays for a liberal construction of the provision harmonious with the objects of the Act so as to include a part-owner of the property within the connotation of 'owner' in the attending circumstances. In view of the clear provisions of the Act in ground (f) since amended as (ff) which admits of no ambiguity, it is not possible to hold that the part-owner of the property in the circumstances is the owner as contemplated in Section 13 (1) (ff). It has also been contended that such interpretation will cause great hardship and make the working of the provision an impossibility. It is however not for the court to import its conception for interpretation which is obviously foreign to the import of the word 'owner' in the statute. Accordingly it must be held that the plaintiff as part-owner of the premises is not entitled to a decree for his own occuoation as provided in ground (f) now (ff).

7. The next contention is that in any event the suit premises are held by the plaintiff for the benefit of the family members of the owners. In the plaint it is stated that the house was built for the accommodation of the family members of the plaintiff's father and the plaintiff accordingly contended that under ground (f) of Section 13 (1) the landlord would be entitled to obtain a decree for eviction if the suit premises are reasonably required for use and occupation of the persons for whose benefit the premises are held. The courts below have found that the suit premises are reasonably required for the family members of the deceased father of the plaintiff and this finding cannot be assailed in this appeal. Accordingly as the premises are held by the plaintiff for their benefit it is contended that the plaintiff would be entitled to a decree on this ground.

8. The word 'hold' has been considered by the Supreme Court in K.K. Handique v. Member, Board of Agricultural Income-tax, Assam, : [1966]60ITR216(SC) . It was observed that the expression 'holds'

'includes a two-fold idea of the actual possession of a thing and also of being invested with a legal title. Sometimes it is used only to mean actual possession.'

In Budhan Singh v. Babi Bux, : [1970]2SCR10 it was observed :

'In Webster New Twentieth Century Dictionary, 2nd Edition, it is stated that in legal parlance, the word 'hold' means to possess by legal title. In other words the word 'held' is technically understood to mean to possess by legal title.'

In interpreting the word 'held' in ground (ff) the word is to be given a meaning as understood in legal parlance. In absence of any qualifying word that would mean that there must be possession by one on the basis of a legal title though such possession may be for benefit of others. Accordingly, a trustee will be deemed to hold premises on the basis of the trust though such holding will be for the purpose of the trust. The mere fact that the property was intended for use of the family members will not by itself make the plaintiff as holding the property for their benefit within the meaning of the Act in absence of any legal title vesting on him the title of the property to be used for the benefit of others. For this reason, I am of opinion, that the plaintiff cannot be said to be holding the premises for the benefit of others. Accordingly, he is not entitled to a decree for possession on ground (ff) of Section 13 (1).

9. For these reasons. I am of opinion, that the plaintiff is not entitled to any relief in the suit. The appeal accordingly succeeds and is allowed. The judgments and decrees of the courts below granting eviction of the defendants from the suit premises and recovery of possession to the plaintiff are set aside and the plaintiff's suit is dismissed. There will be no order as to costs in this appeal. Leave under Clause 15 of the Letters Patent is prayed for and is granted.


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