Roshan Kohli vs Amitava Mukherjee

Bhaskar Bhattacharya, J.—These two second appeals were heard analogously as common questions of law as well as interpretation of the same agreement of tenancy entered into between the parties are involved. S. A. No. 555 of 1996 is at the instance of a defendant in a suit for eviction and is directed against judgment and decree dated November 30, 1995 passed by the learned Additional District Judge, 7th Court, Alipore in Title Appeal No. 367 of 1988 thereby affirming those dated June 29, 1988 passed by the learned Assistant District Judge, 1st Court, Alipore in Title Suit No. 127 of 1976.

S.A. No. 670 of 1996 is also at the instance of the same defendant but is directed against judgment and decree dated May 30, 1996 passed by the learned Judge, Special Court, E.C. Act and Additional District Judge, Alipore in Title Appeal No. 104 of 1995 thereby reversing those dated January 30, 1995 passed by the learned Munsif, 2nd Court, Alipore in Title Suit No. 564 of 1979.

There is no dispute that the appellant of these two appeals was inducted by the respondent herein on July 5, 1970 in respect of the properties which are the subject matter of these two appeals. However, the terms of the tenancy was recorded by an agreement dated July 7, 1970. According to the said agreement, the appellant was inducted at a total monthly rental of Rs. 900/- according to English calendar month in respect of the total subject matters of these two appeals as mentioned in the schedule of the agreement. It was specifically mentioned in the said agreement that the rent of premises portion including two servants quarters and garage will be Rs. 700/- per month while the rent for the lawn on the Western side of the premises will be Rs. 200/- per month and the landlord will issue two separate receipts for each month. It was further stipulated that the tenancy will commence on and from July 5, 1970 and the same was for two years i.e. till July 4, 1972 or with one month notice from either side whichever is earlier. The schedule mentioned in the said agreement is as follows:

All that ground floor of Premises No. 168, Block "G", New Alipore, Calcutta-700 053 and within the Municipal limits of the town of Calcutta and consisting of the entire ground floor house, one garage in the North of the building together with exclusive use of the lawn in the West and North of the building for gardening purposes as well as the servants lavatory and the bath.

In the year 1976, the respondent filed a'' suit being Title Suit No. 127 of 1976 for eviction of the appellant from the building portion as mentioned above on the ground inter alia of reasonable requirement. The said suit was numbered as Title Suit No. 127 of 1976.

The present appellant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the plaint and the defence of the appellant was that the suit was not maintainable as the same was bad for partial eviction of the appellant. In other words, the appellant contended that the tenancy was one in respect of both building and lawn portion and the plaintiff having prayed for recovery of possession of building portion only, such suit was not maintainable. In the said suit, the appellant further contended that the tenancy began from 5th of an English calendar expiring with the 4th of the next month but the notice having been given with the expiry of the English calendar month, the notice was also illegal. It was further contended that the respondent failed to prove ownership of the property and as such was not entitled to get a decree for eviction on the ground of reasonable requirement. The reasonable requirement of the respondent was also disputed.

The learned trial Judge however on contested hearing decreed the suit after overruling all the aforesaid contentions raised by the appellant.

Being dissatisfied, the appellant preferred an appeal being Title Appeal No. 367 of 1988 and by the judgment and decree impugned in S.A. No. 555 of 1996, the said court has affirmed those passed by the learned trial Judge.

In the year 1979, the respondent filed a separate suit being Title Suit No. 564 of 1979 against the appellant for recovery of possession in respect of lawn portion which was not included in the earlier Title Suit No. 127 of 1976 on the self-same ground of reasonable requirement.

The appellant also contested the aforesaid suit by taking similar type of pleas as taken in the earlier suit. Over and above, the appellant took special plea in this suit that he had acquired thika tenancy right over the land, as he has made construction over the property by virtue of agreement.

The learned trial Judge however accepted the contention that the tenancy was from 5th of an English calendar month expiring with 4th of the next English calendar month and as such the notice to quit terminating the tenancy with the expiry of English calendar month was invalid and thus dismissed the suit on that ground. The learned trial Judge however turned down all other contentions raised by the defendant.

Being dissatisfied, the plaintiff preferred an appeal being Title Appeal No. 104 of 1995 and by the judgment and decree impugned in S.A. No. 670 of 1996 the said court has set aside those passed by the learned trial Judge and has passed a decree for eviction in favour of the respondent.

Being dissatisfied, the appellant has preferred S.A. No. 670 of 1996,

As mentioned earlier both the appeals were heard analogously.

Mr. Dasgupta, the learned counsel appearing on behalf of the appellant in both the appeals did not raise any question as regards genuineness of reasonable requirement but he restricted his submission on three purely technical points.

First, Mr. Dasgupta contended that the deed of exchange by virtue of which the plaintiff alleged to have acquired ownership in the property was invalid on the face of it as the said deed was executed by the mother of the plaintiff on behalf of the minor brother of the plaintiff although it appears from the record that the father of the plaintiff was alive. According to Mr. Dasgupta, a mother is not a natural guardian when father is alive and as such by virtue of such deed no title can accrue in favour of the plaintiff.

Secondly, Mr. Dasgupta contended that it would appear from the agreement of tenancy dated July 7, 1970 that there was only one tenancy and as such two suits filed for recovery of different portions of the same tenancy were not maintainable. Mr. Dasgupta submits that merely because Rs. 700/- was fixed as rent for building portion and Rs. 200/- for lawn portion, that fact did not infer that there were two tenancies.

Thirdly. Mr. Dasgupta contends that the tenancy having commenced from July 5, 1970, the learned court of appeal below erred in law in holding that the notice was valid. Mr. Dasgupta contends that there is no material to show that there has been subsequent alteration of period of tenancy as alleged by the respondent by way of amendment

All the aforesaid contentions of Mr. Dasgupta have been seriously disputed by Mr. Mukherjee appearing on behalf of the respondent

As regards the question of acquisition of title, Mr. Mukherjee contends that no specific defence was taken by appellant alleging that the mother had no capacity to execute such deed on behalf of the brother of the plaintiff and as such the appellant should not be permitted to raise such question for the first time before this court. Mr. Mukherjee further contends that apart from deed, the respondent also proved Municipal Assessment showing that the property stands in the name of the plaintiff in the Calcutta Municipal Corporation and further proved sanctioned plan. Thus, the ownership of the property has been established in this case.

As regards the second point, Mr. Mukherjee contends that in the suit in respect of lawn, the appellant took specific plea that only land was given to him and he made construction over such land and thus acquired thika tenancy right. According to Mr. Mukherjee the said fact itself shows that the appellant has admitted existence of separate tenancy. According to Mr. Mukherjee if it is part of same tenancy as contended by Mr. Dasgupta, the plea of thika tenancy could not be availed of by the appellant.

As regards the third point, Mr. Mukherjee submits the plea of subsequent alteration of month of tenancy having been believed by the learned first appellate court below on the basis of oral evidence adduced by parties, this court sitting in second appeal should not interfere with such finding of fact recorded by the learned first appellate court below. Mr. Mukherjee further submits that the rent receipts and the letter accompanying cheque for payment of rent will show that the tenancy was really according to English calendar month.

At the time of admission of these two appeals, the Division Bench admitting these appeals did not formulate any specific substantial question of law as required under law. However, after hearing the learned counsel for the parties and after going through the materials on record I formulate the following substantial questions of law for decision in these two second appeals:

a) Whether the finding of the learned courts below that the respondent is the owner of the building can be said to be illegal on the basis of materials on record

b) Whether the learned courts below erred in law in holding that two separate tenancies were created by virtue of the agreement of tenancy dated July 7, 1970

c) Whether the learned court of appeal below erred in law in holding that there has been alteration of month of tenancy by subsequent agreement between parties

As regards the first point formulated above, it appears from the record that in support of his ownership the respondent has not only produced the deed of exchange but also the Municipal Assessment and the sanctioned plan given by the Calcutta Municipal Corporation. In the evidence when the respondent relied upon such deed of exchange, no suggestion was given to the respondent that the mother was incompetent to execute such deed of exchange on behalf of his minor son. In my view, if any specific plea was taken to that effect, the respondent could answer such question. Moreover, it appears that no material has been produced before the court showing that the brother of the respondent has ever disputed the ownership of the respondent although the respondent''s name has been mutated in the Municipal Corporation at least from 1970 on the basis of such deed. Thus, in my view, at this stage the appellant should not be permitted to agitate such a new question of fact which requires fresh investigation. Apparently, the documents filed by the respondent proved absolute ownership of the property. Thus, the learned courts below did not commit any illegality in holding that the respondent had proved ownership over the disputed property.

As regards the second point, it appears from the original written statement filed in Title Suit No. 127 of 1976 that the appellant took the following plea in support of his defence that the suit was bad for partial eviction:

With regard to the allegations made in paragraph 1 of the plaint this defendant states that the descriptions and particulars of the premises as given in the said paragraph is wrong and the suit is bad of partial eviction as a part from the rooms and accommodation mentioned in this paragraph and schedule of the plaint, this defendant is also in occupation of mezanine floor rooms being the servants quarter in the said premises in question and the same having not been included in the suit premises: the suit is liable to be dismissed for partial eviction.

It is clear from the aforesaid defence initially taken by the appellant that he alleged that suit was bad for partial eviction not for non-inclusion of lawn but for non-inclusion of mezanine floor rooms which are used as servants" quarters. It further appears from the defence taken in the other suit in respect of lawn that the appellant took specific plea that only land was given as tenancy and he made structure thereon thereby claiming thika tenancy right Thus, his specific defence was that the lawn constituted a separate tenancy. It is true that in one agreement both the tenancies were mentioned but nevertheless it was specifically mentioned that there were separate rents for building portion and land portion and that separate rent receipts would also be issued. Thus, it is clear that the parties intended that two separate tenancies will be created and they acted upon such intention. Both the courts below have rejected the aforesaid defence taken by the appellant on the basis of materials on record and I find that the findings arrived at on this point is quite reasonable on the basis of materials on record. I thus find no reason to disturb such finding of fact recorded by the courts below on the basis of appreciation of evidence. "This is not a case where such findings are based on no evidence nor is it a case where such findings are based on inadmissible piece of evidence; at the same time, such findings cannot be said to be perverse. I thus find no reason to interfere with the aforesaid findings of the courts below and thus find no substance in the second contention of Mr. Dasgupta.

As regards the last contention, viz. the validity of the notice, it is the definite case of respondent that although the tenancy was created on July 5, 1970 it was subsequently verbally agreed between the parties that from the next month the tenancy would be according to English calendar month; such alteration of the month of tenancy has been however disputed by the defendant. The learned court of appeal below believed the testimony of the plaintiff that there was alteration of the month of tenancy. It further appears that even the appellant all along paid the rent according to English calendar. This court is quite conscious of the position of law that mere payment of rent according to English calendar month is not decisive factor, if it is established that the month of tenancy is not in accordance with the mode of acceptance of rent. However, the question whether there was realty alteration of month of tenancy is essentially a disputed question of fact. In S.A. No. 555 of 1996 both the courts below have concurrently held that there has been alteration of such month of tenancy whereas in the other second appeal being S.A. No. 670 of 1996 the learned first appellate court below after setting aside the finding of the learned trial Judge has disbelieved the case of appellant. The said finding is also a finding recorded by the final court of fact on the basis of oral evidence. Under such circumstances, there is no scope of interference with such finding recorded by the final court of fact in these second appeals when such finding is quite a reasonable one. I thus find no reason to interfere with the finding arrived at by the learned first appellate court below on the aforesaid point. All the points taken by Mr. Dasgupta having failed, I find no substance in these two second appeals and those are dismissed.

In the facts and circumstances there will be however no order as to costs.