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Universal Trading Co. Vs. Prafulla Kumar Sarkar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberFirst Appeal Nos. 1101 and 1102 of 1969
Judge
Reported inAIR1977Cal94
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1); ;Transfer of Property Act, 1882 - Section 106
AppellantUniversal Trading Co.
RespondentPrafulla Kumar Sarkar and anr.
Appellant AdvocateR.P. Bagchi, ;N.C. Chakravarty and ;Bhuban Mohan Saha, Advs.
Respondent AdvocateRanjit Kr. Banerjee, ;Bidyut Kr. Banerjee and ;Mrinal Kanti Das, Advs.
DispositionAppeal dismissed
Cases Referred and Jagannath Sen v. Sriram Pasricha
Excerpt:
- .....10. mr. chakraborty addressed us et length on the point of reasonable requirement of the suit premises on the part of the plaintiffs for their own use and occupation. for this purpose he relied upon the evidence which was taken in this court on the additional issue which has been framed. we have already held that the defendant is not a tenant within the meaning of premises tenancy act, that being so, it is immaterial whether the plaintiffs satisfied the conditions mentioned in clause (ff) of sub-section (1) of section 13 of the premises tenancy act in view of what has been discussed above it follows that there is no bar to the suits being decreed. these appeals, therefore, fail and are accordingly dismissed. the judgment and decrees of the trial court are affirmed. in the.....
Judgment:

Janah, J.

1. These two appeals arise out of two suits for ejectment which were instituted by the respondents against the appellant for the latter's eviction from two tenancies at No. 72, Bai-thakhana Road. The plaintiff-respondents alleged that the defendant-appellant held one residential tenancy in respect of 3 rooms at 72, Baithakhana Roard under the plaintiffs at a rental of Rs. 21/- per month according to Bengali calendar. The defendant appellant also held anothertenancy under the plaintiff-respondents at the aforesaid premises No. 72, Baithakhana Road in respect of a shop room at a rental of Rs. 32/- per month according to Bengali calendar. Ejectment suit No. 44 out of which F. A. 1101 arises was instituted in respect of the residential tenancy and Ejectment Suit No. 45 out of which F. A. 1102 arises was instituted in respect of the shop room. It was alleged that the plaintiffs had purchased the structure at 72, Baithakhana Road in which the disputed tenancies were situate, from the heirs of the original owner, late Gendu Khan, who was a thika tenant in respect of the land on which the said structure stood, by a kobala dated August 10, 1964. It was further alleged that after their purchase the plaintiffs informed the defendant about their purchase but the defendant did not pay rent to the plaintiffs, and the defendant was in default since Sravan, 1371 B.S. The plaintiffs further alleged that the shop room was required by them for their own occupation for business purpose and that the premises in the other suit was required by the plaintiff No. 2 for his own use and occupation and for the use and occupation of the members of his family as their residence. The defendant denied the relationship of landlord and tenant between the parties and contended that the plaintiffs were not the sole owners of the structure in which the disputed tenancies were situate. The defendant denied the service and sufficiency of the notice to quit. Reasonable requirement on the part of the plaintiffs was also denied in the written statement.

2. As common questions of law and facts arose in 'both the suits the two suits were tried together. The learned Judge in the trial court accepted the plaintiff's case and decreed both the suits. Against the trial court's decrees the present appeals have been filed by the tenant defendant. The suit was filed on January 4, 1967 i.e. within 3 years from the date of plaintiffs' purchase. Section 13 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 'Premises Tenancy Act') was amended by the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (hereinafter referred to as the 'Second Amendment Act') which came into force with retrospective effect on 14th November, 1969, after the suits were disposed of by the trial court. In view of the decision in the case of B. Banerjee v. Anita Pan, : [1975]2SCR774 the plaintiffs-respondentsfiled an application for amendment of the plaint praying for incorporating an averment in the plaint that the plaintiffs were not possessed of any other reasonably suitable accommodation. The said prayer having 'been allowed by this court the defendant-appellant filed an additional written statement denying the plaintiffs allegations whereupon an additional issue was framed and thereafter the parties adduced evidence in support of their respective cases in this Court.

3. Mr. Nirmal Chandra Chakravarty, learned Advocate, appearing on behalf of the appellant has contended in the first place, that the plaintiffs are the purchasers of the interest of a thika tenant and hence they cannot file a suit under the Premises Tenancy Act for eviction of the -defendant who was a 'Bharatia' under the plaintiffs' predecessors. He drew our attention to the deposition of plaintiff No. 2 where he has admitted that the interest of the plaintiffs is that of a thika tenant. He also referred to Exhibit 7 series which show payment of ground rent by the plaintiffs to the superior landlord. Mr. Chakravarty, therefore, contended that the defendant was not a tenant under the Premises Tenancy Act and as such the suit for eviction under the said Act was not maintainable. It is not in dispute that the plaintiffs purchased the structure from the heirs of Gendu Khan whose status was that of a thika tenant. The question that arises for consideration, therefore, is whether a 'Bharatia' as defined in the Calcutta Thika Tenancy Act, 1949 (hereinafter referred to as the Thika Tenancy Act') is a tenant within the meaning of Premises Tenancy Act vis-a-vis his Landlord, the thika tenant, or the purchaser of the structure from the thika tenant. Mr. Chakravarty relied on a decision in Santilata Dey v. Sarjubala Devi, (1956) 60 Cal WN 642 in support of his contention. That is a case where tenant was inducted by virtue of a lease which expressly described it to be a lease of land with the building and structures situated thereon. In an action for ejectment the defendant in that case took the plea that his tenancy is governed by the Thika Tenancy Act. The courts below upheld the said contention. On revision a Division Bench of this Court held that the lease being one of lend with the buildings etc. situated thereon the tenancy in question in that suit was not governed by the Thika Tenancy Act. There is, therefore, nothing inthe said decision which can be of any assistance to the appellant in the present case. Mr. Chakravarty strongly relied upon the provisions of Section 10 of the Thika Tenancy Act in support of his contention that a Bharatia is not a tenant within the meaning of Premises Tenancy Act vis-a-vis the Thika Tenancy. He contended that the provisions in Section 10 to the effect that when any structure standing on any holding of a Thika Tenancy vests in the landlord on any of the grounds mentioned in Section 3 of the Thika Tenancy Act except Clause (i) of Sub-section (1) of Section 3 the Bharatia of such thika tenant shall be deemed to hold under the superior landlord as a tenant under the Premises Tenancy Act, goes to show that only in such cases the Bharatia will be deemed to be a tenant under the Premises Tenancy Act. This provision according to Mr. Chakraborty necessarily implies that the Bharatia does not hold his tenancy under the thika tenant or his transferee, as a tenant within the meaning of Premises Tenancy Act. Mr. Chakraborty strengthened his submission on the basis of certain observations in the case of Annapurna Seal v. Tincowrie Dutt. (1962) 66 Cal WN 338. In that case a Division Bench of this Court in construing the words 'land' and 'structure' in Section 2 (5) of the Thika Tenancy Act observed as follows:--

'No interpretation should be put upon this Calcutta Thika Tenancy Act which makes it a redundant duplicate of the cognate statute of the West Bengal Premises Tenancy Act, 1956. To construe the words 'land' and 'structure' in Section 2 (5) of the Calcutta Thika Tenancy Act so liberally as to make them premises within the meaning of Section 2 (f) of the West Bengal Premises Tenancy Act, 1956 will be to duplicate statutes which could not have been the intention of the Legislature and will lead to utter confusion. If West Bengal Premises Tenancy Act or its precursors the Rent Control Act were applicable then it is difficult to understand the utility of another statute. It is because it was thought that these Acts were not sufficient to protect this class of tenant that the Calcutta Tenancy Act was enacted. This Calcutta Tenancy Act was fully alive to this situation and only permit the Rent Act to apply in the case of 'Bharatia' alone in the limited eventuality expressly mentioned in Section 10 (2) of the Calcutta Thika Tenancy Act.'

Relying on these observations Mr. Chakraborty contended that a 'Bharatia' is not a tenant under the Thika Tenancy Act or within the meaning of the Premises Tenancy Act. According to him a 'Bharatia' cannot be said to be a tenant within the meaning of the Premises Tenancy Act by putting any construction upon the provision of the Thika Tenancy Act because Section 10 (2) of the latter Act contains a deeming provision, and it is only the Legislature which can make a deeming provision and the Court cannot introduce a deeming provision by a construction of the statute. In this connection Mr. Chakraborty drew our attention to the case of Commr. of Income-tax. Bombay Presidency v. Bombay Trust Corporation Ltd., (1930) 57 Ind App 49 = (AIR 1930 PC 54) where their Lordships of the Privy Council observed that

'when a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something an Act of Parliament requires him to be treated as if he were.'

Mr. Chakraborty also relied upon the observations in S. K. Phate v. C. A. Kedar, : AIR1974Bom281 appearing at paragraph 11 of the report, and contended that a deeming provision cannot be introduced by construction and it is the exclusive privilege of the Legislature to apply a deeming fiction in a given case. It was accordingly contended that since a deeming provision has been incorporated in Section 10 (2) of the Thika Tenancy Act it goes to show that a Bharatia is not and cannot be a tenant under the Premises Tenancy Act, except in the case contemplated by Section 10 (2).

4. In order to appreciate the contention of Mr. Chakraborty it is necessary to refer to certain provisions of the Thika Tenancy Act. The preamble to the Act says that the said Act has been enacted 'to make better provision relating to the law of landlord and tenant in respect of Thika Tenancy in Calcutta'. The Act accordingly makes provisions for regulating the rights and obligation of a thika tenant vis-a-vis his landlord. Barring a few provisions regarding the rights of a Bharatia under a thika tenant the Act makes no provision for regulating the relationship as between a thika tenant and his Bharatia, The rights which have been conferred upon a Bharatia under the said Act are to be found in Sections 10, 10-A and 32-B. Section 10 provides that in certain cases where thestructures standing on the holding of a thika tenant vests in the landlord the Bharatia shall be entitled to continue in possession and he shall be deemed to be a tenant in respect of the portion in his occupation within the meaning of the Premises Tenancy Act. Section 10-A gives the thika tenant a right to erect pucca structure but in doing so the thika tenant cannot eject a Bharatia. If. for such purpose, the thika tenant wants to have vacant possession of the portion in occupation of the Bharatia then he is to make alternative accommodation for the Bharatia until the erection of such pucca structure. Similarly, Section 32-B creates an obligation on the part of the thika tenant to provide for essential amenities for the Bharatia, such as, supply of water, conservancy and sanitary services. It also gives a right to the Bharatia to apply to the Thika Controller if these amenities ere not provided for or are insufficient. Apart from conferring some rights on the Bharatia under the aforesaid sections the Thika Tenancy Act does not make any provision as to the rights of a Bharatia as against the thinka tenant. The rights of a tenant under the Premises Tenancy Act are however much wider. To say that a Bharatia is a tenant within the meaning of the Premises Tenancy Act would be to confer much greater rights upon the Bharatia which the Thika Tenancy Act does not intend to do. Moreover, if a Bharatia is regarded as a tenant under the Premises Tenancy Act vis-a-vis the thika tenant then two parallel provisions would be available to the thika tenant under the two Acts, as for instance, if the supply of water to the Bharatia is interfered with by the thika tenant the Bharatia would have a remedy under Section 32-B of the Thika Tenancy Act as well as under Section 34 of the Premises Tenancy Act. This is a situation which could never have been contemplated by the Legislature, Moreover, the rights conferred upon a thika tenant under the Thika Tenancy Act as it originally stood were very limited in character compared to those of a tenant under the Premises Tenancy Act. If a Bharatia is regarded as a tenant under the Premises Tenancy Act then the Bharatia would have greater rights than his landlord, the thika tenant himself has. It follows, therefore, that a Bharatia cannot be regarded as a tenant under the Premises Tenancy Act.

5. It was contended on behalf of the appellant that as a Bharatia is not atenant under the Premises Tenancy Act his landlord, the thika tenant, cannot bring a suit for eviction under the Premises Tenancy Act, and the present suits are accordingly liable to be dismissed In support of this contention reliance was placed upon the decision in Sahadeb Chandra Paul v. Manmathanath Mondal, (1971) 75 Cal WN 979, where a learned Judge of this Court sitting singly took the view that as landlords in that suit were thika tenants they had no right to bring a suit for eviction against the tenants defendants of that suit. That decisionwas arrived at by our learned brother on the basis of certain observations in Yogamaya Pakhira v. Santisudha, ILR (1968) 2 Cal 70 in which it was held that the expression 'owner' occurring in Clause (f) of Section 13 (1) of the Premises Tenancy Act prior to its amendment or in Clause (ff) of the said section after its amendment must be given its ordinary connotation or dictionary or usual meaning, that is, a person having full and absolute ownership of the disputed property and would not include a permanent lessee. Reliance was also placed on the decisions in Nishikanta Roy v. Mono-mohan Sengupta, (1975) 1 Cal LJ 404 and Jagannath Sen v. Sriram Pasricha, (1975) 1 Cal LJ 413 in support of this contention advanced on behalf of the appellant. In these two cases however there was no dispute that the defendants in those suits were tenants within the meaning of the Premises Tenancy Act. In the case of Nishikanta the question was whether the plaintiff who was himself a tenant could be regarded as 'the owner' within the meaning of Section 13 (1) (ff) of the Premises Tenancy Act. It was held that the term 'owner' did not include the tenant of the tenanted premises; as such the plaintiff is not entitled to a decree for ejectment. In the case of Jagannath Sen the question arose as to whether a co-sharer owner was 'owner' within the meaning of Clause (ff) of Section 13 (1) of the Premises Tenancy Act. Their Lordships held that a co-sharer owner did come within the expression 'owner' as used in Section 13 (1) (ff). But in the present case as we have seen the defendant is a Bharatia, and as such, he is not tenant within the meaning of the Premises Tenancy Act. The question, therefore, arises as to whether the plaintiffs in the present suit are disqualified from filing a suit for eviction against the defendant on the ground of non-payment of rent and also for requirement of the plaintiffs asthe plaintiffs are not 'owners' within the meaning of Section 13 (1) (ff) of the Premises Tenancy Act.

6. It is to be remembered in this connection that suit for recovery of possession is not one under the Premises Tenancy Act, but it is under the general law after determination of the tenancy by a notice to quit. The Premises Tenancy Act puts certain restrictions on the landlords' right to recover possession from the tenant unless certain conditions as enumerated in Section 13 (1) of the Premises Tenancy Act are fulfilled. It is only after the bar is lifted that a decree for eviction can be passed against a tenant. Under the general law there is no such bar or restriction upon the landlord's right to evict a monthly tenant. The landlord is not required to satisfy the court as to whether he requires the subject-matter of the tenancy for his own use and occupation or a tenant is a defaulter or that any of the conditions mentioned in Section 13 (1) of the Premises Tenancy Act exists in order to get a decree for eviction against the tenant. The only thing which the landlord is required to prove in such a case is that the tenancy has been determined by service of a valid notice to quit. On that question the trial court has recorded a finding in favour of the plaintiffs. In fact it was not disputed before the trial court that the notice had been duly served on the defendants in respect of both the tenancies.

7. On behalf of the appellant it was contended on the basis of Sahadeb's case ((1971) 75 Cal WN 979) (supra) that the plaintiffs themselves being thika tenants they are not owner within the meaning of Section 13 (1) (ff) of the Premises Tenancy Act and therefore, their suits are liable to be dismissed. We have already held that the defendant is not a tenant within the meaning of the Premises Tenancy Act. That being so it matters little whether the plaintiffs are 'owner' within the meaning of Section 13 (1) (ff) of the Premises Tenancy Act or not. In Sahadeb's case it is not clear whether the defendants were Bharatia or not. On the other hand it appears that both the parties accepted the position that they were tenants within the meaning of Premises Tenancy Act. The said decision is, therefore, of no assistance to the defendant in the present case,

8. The next point urged on behalf of the appellant is that the plaintiffshave no title to the disputed property as the kobala by which they purchased the disputed property is a void document. The kobala was attacked on two grounds, first, that the original owner Gendu Khan had other heirs who were not parties to the kobala and the plaintiffs had not purchased the interest of those heirs. Secondly, it was contended that the said document is void as it offends Sections 5 and 23 of the Foreign Exchange Regulation Act, 1947 and also Section 23 of the Indian Contract Act, 1S72, Mr. Chakra-borty appearing on behalf of the appellant drew our attention to the evidence of Jatindra Kumar Sarkar, witness No. 1 for the plaintiffs at page 63 of the Paper Book where the said witness stated that the sum of Rs. 10,000/- was paid to the widow of Gendu Khan in Pakistan in presence of her two sons and daughter. He also stated that no money was paid at the time of execution and registration of kobala. Mr. Chakraborty also drew our attention to the disputed kobala, Ext. 3, in which it has been recited in the memo, of consideration that a sum of Rs. 10,000/- was paid by 100 pieces of currency notes of Rs. 100/- each. We were accordingly invited to hold that P.W. 1 was not speaking the truth. Mr. Chakraborty also criticised the evidence of P.W. 1 on the ground that the said witness did not, in fact, know anything about the transaction but the persons who knew about it namely, Prokash Chandra Sarkar and Prafulla Kumar Sarkar, were not examined in the suit. Having regard to the totality of evidence that has been placed before the court we are unable to agree with Mr. Chakraborty, and in our view, there is no sufficient reason why the evidence of P.W. 1 Jatindra Kumar Sarkar should not be accepted. With regard to the second objection raised by Mr. Chakraborty in this behalf we find no reason why the disputed kobala, Ext. 3, should be held to be void. Section 5 of Foreign Exchange Regulation Act, 1947, inter alia, puts a restriction in making payment by a person in, or resident in India to or for the credit of any person resident outside India. Section 23 of the said Act provides for the penalty and procedure for imposing the same for contravention of Section 5 and certain other sections of the said Act In the present case the evidence is that the money was paid in Pakistan by P.W. 1 who, at the relevant time, was residing in Pakistan. There is no evidence as to how Indian money was taken toPakistan, In such a case, therefore, Section 5 of the Foreign Exchange Regulation Act, 1947 can hardly have any application. Even if Section 5 is held to be applicable the result would be that the person concerned would make himself liable to the penalty under Section 23. But for that reason the document cannot be held to be void. Section 23 of the Contract Act provides that the consideration and object of an agreement is lawful unless it is forbidden by law, or it defeats the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the court regards it as immoral or opposed to public policy. There is nothing in the present case which can be said to bring the disputed transaction within any of these six exceptions mentioned in Section 23 of the Contract Act. We ere, therefore, unable to uphold the contention advanced by Mr. Chakraborty in this behalf.

9. Lastly, Mr. Chakraborty contended that in deciding the present appeals this Court should take notice of certain subsequent events and also take additional evidence in respect of certain documents, copies of which have been annexed to the application filed by him for that purpose under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure. In the said application the petitioner has stated that although he was definite that Gendu Khan died leaving behind him surviving 8 persons as his heirs and legal representatives as mentioned in paragraph 4 of the said application the petitioner could not produce and/or adduce any documentary evidence in support of his defence. It has been stated further that it is only after the receipt of a letter dated 11th October, 1969 from one Sri K. B. Kanjilal, Advocate, that the petitioner made enquiries at different places and ascertained that Gendu Khan died leaving 8 persons as his heirs and legal representatives. The documents on which the plaintiffs rely in support of their title were all filed in the trial court. The defendant could easily obtain inspection of the same and make necessary enquiry regarding such particulars as were necessary according to him. The fact that the defendant could not produce or adduce any documentary evidence in support of his defence at the appropriate stage is no ground for reception of additional evidence by the appellate court. Moreover, we do not require additional evidence for deciding the present appeals.

The application for the reception ofadditional evidence is accordingly dismissed.

10. Mr. Chakraborty addressed us et length on the point of reasonable requirement of the suit premises on the part of the plaintiffs for their own use and occupation. For this purpose he relied upon the evidence which was taken in this Court on the additional issue which has been framed. We have already held that the defendant is not a tenant within the meaning of Premises Tenancy Act, That being so, it is immaterial whether the plaintiffs satisfied the conditions mentioned in Clause (ff) of Sub-section (1) of Section 13 of the Premises Tenancy Act In view of what has been discussed above it follows that there is no bar to the suits being decreed. These appeals, therefore, fail and are accordingly dismissed. The judgment and decrees of the trial court are affirmed. In the circumstances we make no order as to costs.

S.K. Bhattacharya, J.

11. I agree.


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