Deoraj Pandey vs Nirmal Chand Dutta And Others

This is a desperate appeal by a rank interloper seeking to cling on to the possession of an immovable property. The only ground urged is that the counter-claim of the defendant which succeeded before the trial court was undervalued.

The plaintiff-appellant filed a suit for a declaration that the plaintiff was a tenant in respect of the suit premises and consequential injunction. A counter-claim was served by the defendant, asserting that the plaintiff had no right to remain in occupation of the suit property and seeking recovery of possession. The plaintiff says that the implication of the counter-claim was that since the plaintiff was not a tenant, the premises was terminated by serving the counter-claim. According to the plaintiff, a counter-claim has to be valued on a different basis than a claim for evicting a tenant and the defendant in this case did not value the counter-claim appropriately or tender adequate court-fees thereon.

On a reading of the written statement and the judgment and decree impugned, it does not appear that the point relating to deficit court-fees or improper valuation had been canvassed before the trial court. There is a passing reference to the matter in the written statement and it does not appear from the judgment impugned that there was any submission that was made in such regard at the trial. It is elementary that an objection as to insufficient court-fees is a matter between the court and a litigant and merely because the adversary has put in inadequate or insufficient court-fees would not imply that a party can resist the claim on such ground.

The trial court found that though a tenancy of about 40 years had been claimed, not a single rent receipt was produced on behalf of the plaintiff. The trial court also found that there was a self-serving complaint lodged with the police of the plaintiff having lost an exercise-book where the records of the rent paid were allegedly maintained. The trial court completely disbelieved the story of tenancy. Since the plaintiff claimed under the original defendants, the plaintiff could not deny the title of the original defendant to the suit property. In any event, the sole defendant impleaded herein was the beneficiary under a Will and came to own the property.

On a reading of the judgment impugned it appears that the only ground urged on behalf of the appellant herein before the trial court was that under the probated Will, some properties, including the suit property, were charged with the mother and, thus, the ownership of Nirmal in respect of the suit property was in doubt. The trial court dealt with such objection with great clarity. The trial court observed that merely because the property was charged with the mother of Nirmal did not imply that Nirmal had lost ownership of the property. The trial court reasoned that Nirmal continued to remain the owner of the property and was entitled to maintain the counter-claim for eviction. The decree was passed in the usual course and upon the plaintiff's case failing. The evidence in such regard was clinching and the appellant herein could not make out any right to remain in possession of the property in question. In the circumstances, the judgment and decree impugned do not call for any interference.

The appellant has relied on a Full Bench judgment reported at AIR 1961 Cal 229. The question posed before the Full Bench was as to the quantum of court-fees payable for seeking eviction of a licensee upon termination or revocation of the licence. The court found that the court-fees payable in such a situation was more than the court-fees payable for eviction of a tenant. However, it cannot be appreciated as to how the dictum in the judgment is of any assistance to the appellant herein.

Considering that the appellant's claim for a declaration that the appellant was a tenant at the suit premises failed, the decree for eviction was a formality. There does not appear to be any illegality or irregularity in the approach of the trial court or in the outcome of the counter-claim upon the suit being dismissed. The judgment and decree challenged by way of the present appeal do not call for any interference.

F.A. 123 of 2019 is dismissed.

There will be no order as to costs.