AI Structured Summary
Not yet generated for this judgment
Judgment
Biswajit Basu, J.
This appeal is at the instance of the defendant in a suit for recovery of possession and is directed against judgment and decree dated September 14,
2017 passed by the learned Judge 10th Bench, City Civil Court at Calcutta in Title Suit No. 498 of 1999.
The plaintiff’s case in brief is that it is a religious, philanthropic and charitable institution rendering social and voluntary services irrespective of
caste, creed and community. The society in keeping its noble object started home and orphanage in a part of premises no.4A, Bankim Chatterjee
Street, Kolkata (hereinafter referred to as the suit premises, in short).
The suit premises was taken by the society from the Government of West Bengal. The said agreement was entered into by and between the plaintiff
and the Governor of the State of West Bengal. In the year 1980 the welfare home and orphanage building was closed due to some antisocial activities
and undisciplined behavior of some of the over aged orphan and the orphans were removed from suit premises. The ground floor and second floor of
the suit premises thereafter given to a nursery school namely Mahabodhi Nursery School and to a television training institute, respectively. In the
month of November, 1987 the said T.V Training Centre was closed and the rooms given to the said training centre were kept under lock and key. The
general secretary of the plaintiff society on January 01, 1999 found that the defendant by breaking open the pad lock had illegally trespassed into the
two rooms on the second floor of the suit premises (which is hereinafter referred to as the suit property, in short). The defendant since then has been
occupying the suit property as trespassers paying no heed to the demand of the plaintiff to vacate. The plaintiff having no other alternative filed the
suit for recovery of possession of the suit property.
The defendant entered appearance and contested the suit. His defense in the written statement is summarized as follows:-
The suit is not maintainable in its present form and law and is barred by principle of estoppels, waiver, acquiescence and is also is barred by law of
limitation. His further defense is that he is a licensed electrician having electrical workman permit. The plaintiff in the year 1975 engaged him as
it’s full time employee to look after manage and maintain the electric system of the suit premises along with other buildings of the plaintiff as
electrician. The defendant since is in the service in the plaintiff, he was allotted the suit property as a part of his emolument and remuneration received
by him from the plaintiff month by month. The status of defendant is therefore of a tenant, not a trespasser and he cannot be evicted from the suit
property without determination of his said tenancy by a vaild notice under Section 13(6) of West Bengal Premises Tenancy Act, 1956. The ration card
and voter identity card standing in the name of the defendant establish lawful possession of the defendant over the suit property. The defendant
therefore prayed dismissal of the suit.
The learned trial Judge considering the pleadings of the parties framed following five issues:
i) Is the Suit maintainable as framed?
ii) Has the plaintiff any cause of action to file the suit?
iii) Is the defendant residing in the suit premises as orphanage, tenant or as trespasser?
iv) Is the plaintiff entitled to get decree as prayed for?
v) To what relief/reliefs, if any, plaintiff is entitled to get?â€
The learned trial Judge decreed the suit by directing the defendant to deliver the vacant possession of the suit property in favour of the plaintiff
society within three months from the date of order failing of which plaintiff society has been granted liberty to execute the decree in due course of
law. The learned trial Judge by the said decree also passed an order of injunction restraining the defendant from using electricity from the meter stand
in the name of plaintiff and also from enjoying the water supply of the suit premises.
Mr. Jiban Ratan Chatterjee, Learned Senior Advocate appearing on behalf of the appellant submits as follows:-
i) The Learned Trial Judge has made out a third case, by entering into the investigation as to whether the defendant is entitled to hold and occupy the
suit property as orphan, although the plaintiff has not sought for eviction of the defendant from the suit property on the said ground.
ii) The person who affirmed the plaint has no direct knowledge about the incident of alleged trespass by the defendant in the suit property as such he
is not competent to affirm the plaint. The plaint has not been affirmed in accordance with Order 19 rule 3 of the Code of Civil Procedure as such
liable to be rejected. Mr. Chatterjee in support of his said contention relied on the decision of Amar Singh â€"Versus- Union of India and Others
reported in (2011) 7 SCC â€" 69.
iii) The plaintiff has failed to prove it’s allegation that the defendant had trespassed into the suit property on January 01, 1999 as the plaintiff,
although claimed that there are documents to substantiate the said allegation has not produced those documents in course of trial of the suit. The
plaintiff by withholding the said documents has practiced fraud upon the Learned Trial Judge in obtaining the decree. The allegation of trespass in the
suit property by the defendant should have been held to be false by drawing adverse presumption for the failure of the plaintiff to produce those
documents. Mr. Chatterjee on this point places his reliance on paragraph no.29 of the case of A.V. Papayya Sastry and Others â€"versus- Govt. of
A.P. and Others, Reported in (2007) 4 Supreme Court Cases â€" 221.
iv) The defense of the defendant in the suit is that the suit property has been let out to him by the reason of his being in employment of the plaintiff.
The said defense of the defendant has not been considered by the Learned Trial Judge.
v) The suit should not have been be decreed on the failure of the defendant to prove his tenancy over the suit property, since the plaintiff has to
succeed on the strength of his own case, not on the weakness of the defendant’s case or for the failure of the defendant to prove his defense. In
support of his such argument, Mr. Chatterjee places reliance on paragraph no.33 of the case of State of Madhya Pradesh â€"Versus- Ushadevi,
reported in (2015) 8 Supreme Court Cases â€" 672.
Mr. Bidyut Kumar Banerjee, Learned Advocate appearing on behalf of the respondent refuting the submission of Mr. Chatterjee argues as
follows:-
i) The Learned Trial Judge has not made out any third case. The plaintiff brought the defendant in the suit premise as an orphan and he was allowed
to stay in the suit property as such. The Learned Trial Judge has rightly held that after attaining majority he cannot hold and occupy the suit property in
the capacity of an orphan also.
ii) The plaintiff is seeking eviction of the defendant from the suit property on the strength of it’s title. The title of the plaintiff over the suit premises
has been proved. In fact the same is not under any challenge in the present suit. The Learned Trial Judge is therefore, has not committed any error in
decreeing the suit. He, in support of his said contention places reliance on the case of R.V.E. Venkatachala Gounder â€"Versus- A.V.&V.P. Temple,
reported in AIR 2003 (SC) â€" 4548 and Maria Margarida Sequeira Fernades â€"Versus- Erasmo Jack De Seequeira, reported in (2012) 5 Supreme
Court Cases â€" 370.
iii) The defendant although was appointed as an electrician of the plaintiff society but he was never allotted the suit property by reason of his such
employment. The defendant trespassed into suit property on January 01, 1999 and has been occupying the same illegally as a trespasser.
iv) The plaint has been affirmed by the general secretary of the plaintiff society and he is competent to do so. Therefore, there is no irregularity in the
affirmation of the plaint.
v) The defendant has claimed that he was put into possession of the suit property by reason of his service with the plaintiff society. The burden of
proving such claim is on the defendant but the defendant since has failed to prove his such claim, the suit has rightly been decreed by the Learned
Trial Judge.
Heard the learned Advocates for the parties at length perused the materials on record. Let us now consider the submissions of the learned
Advocates for the parties.
In the present case it is the admitted position that the defendant came into the suit property as an orphan. The paragraph Nos.3 and 14 of the
examination-in-chief of the defendant, being relevant to the present context is reproduced below:-
“3. I say that being an Orphan I was residing in the suit premises since 1968 and I was brought at the Mohabodhi Welfare House being No.4A,
Bankim Chatterjee Street, Kolkata through Social Welfare Department, Government of West Bengal as refugee and since then I am residing there
wherefrom I passed School Final Examination under their care and subsequently they allotted me two rooms on the Second floor at the said building
for my permanent residence.
I say that my possession and occupation at the suit premises since 1980 when I got marriage and official of the Mohabodhi Society allotted me the
said two rooms which is referred to as the suit premises being was an Orphan and I am paying occupational charge by deduction from my salary.â€
The Learned Trial Judge in view of the aforesaid claim of the defendant that he was allotted with the suit property as an orphan, examined that
whether the defendant can hold and occupy the suit property as an orphan. The Learned Trial Judge on consideration of the age of the defendant has
come to the finding that the defendant is no more an orphan as such cannot hold and occupy the suit property in the said capacity. The said exercise
of the Learned Trial Judge cannot be termed as making out a third case as submitted by Mr. Chatterjee.
The contention of Mr. Chatterjee that the plaint has not been properly verified and/or affirmed is of no substance since the plaint has been
affirmed by venerable Dr. D. Rewata Thero, General Secretary of the plaintiff who is competent to represent the society in his said capacity. In the
facts and circumstances of the present case the decision relied on by Mr. Chatterjee, reported in (2011) 7 Supreme Court Cases 69 (Supra) has no
manner of application.
The Principle Executings Officer of the plaintiff has been cited in the suit as PW-1. The said witness in his examination-in-chief at paragraph
No.12 categorically stated that original documents of the suit were lost from the custody of the General Secretary of the plaintiff on August 1, 2011 at
about 1:00 p.m. while he was carrying the said documents for the purpose of making photocopy of the said documents. The veracity of the said
statement of the said witness has not been put under any challenge by the defendant at the time of cross examination of the said witness. Moreover, a
written complaint was lodged with the Officer-in-charge, Amherst Street Police Station on August 01, 2011 i.e., on the date when the documents were
lost. The said written complaint with the Police has been exhibited in the suit as exhibit No.3 without any objection. Therefore, the plaintiff cannot be
blamed for withholding the best evidence to gain advantage and for this reason the decision reported in (2007)4 Supreme Court Cases 221 (Supra)
relied on by Mr. Chatterjee is not applicable in the facts and circumstances of the present case. The contention of Mr. Chatterjee that the plaintiff has
withheld the documentary evidence relating to the allegation of trespass by the defendant in the suit property to gain advantage fails.
The submission of Mr. Chatterjee that the plaintiff has to succeed in the suit on the strength of its own case and the Learned Trial Judge should
not have decreed the suit on the failure of the defendant to prove his tenancy over the suit property, needs to be addressed.
There is no dispute with regard to the proposition of law laid down in (2015)8 Supreme Court Cases 672 (Supra), relied on by Mr. Chatterjee that
the plaintiff has to succeed basing on the strengths of his case and cannot depend upon the weakness of the defendant’s case. There is no doubt
that the initial burden to prove the plaint case, to get the relief as prayed for in the suit is upon the plaintiff.
In the present case the plaintiff has prayed for a decree of recovery of khas possession from the defendant describing him as a trespasser in the
suit property. In such a case, as rightly submitted by Mr. Bidyut Kumar Banerjee, Learned Advocate for the plaintiff by placing reliance on the
decisions of the Hon’ble Apex Court reported in AIR 2003 (SC) â€" 4548 (Supra) and (2012) 5 Supreme Court Cases â€" 370 (Supra) that the
initial burden of the plaintiff has been discharged as soon as the title of the plaintiff over the suit property is established. In fact the title of the plaintiff
over the suit property is not in dispute in the present case.
The paragraph No.29 of the decision of the Hon’ble Apex Court reported in AIR 2003 (SC) â€" 4548 (Supra), relied on by Mr. Banerjee
being relevant in the present context, is quoted below:-
“29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to
dispossess the defendant from his possession over the suit property and for the possession to be restored with him. However, as held in A.
Raghavamma and another v. Chenchamma and another AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof;
burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous
process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of
probability so as to shift the onus on the defendant it is for the defendant to discharge his onus an in the absence thereof the burden of proof lying on
the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.â€
The paragraph No.67 (2012) 5 Supreme Court Cases â€" 370 (Supra) relied on Mr. Banerjee is also relevant in the present context as such quoted
below:-
“67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being
established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in
subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to
establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in
question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to
continue in possession.â€
The burden of proof on the plaintiff to get the relief as prayed for in the suit is discharged as soon as the plaintiff has proved it’s title over the
suit property, as the relief in the suit is based on title. The burden of proof being discharged by the plaintiff, onus shifts upon the defendant to prove his
case of tenancy over the suit property.
The defendant in the present case has set up the defense of tenancy on the ground that by reason of his employment with the plaintiff he was
allotted with the suit property, he therefore is entitled to the protection of a tenant as contemplated under the provisions of the Section 13(g) of the
West Bengal Premises Tenancy Act, 1956.
Section 13 (g) of the West Bengal Premises Tenancy Act, 1956 reads as follows:-
“(g) where the premises were let to the tenant for use as residence by reason of his being in the service or employment of the landlord and the
tenant has ceased before or after coming into operation of this Act to be in such service or employment;â€
The defendant in support of his claim of the tenancy has produced some documents which are-
(i) Registration certificate of school final of the defendant â€" exhibit ‘A’.
(ii) The certificate of electrician of the defendant â€" exhibit ‘B.
(iii) The character certificate of the defendant issued by the plaintiff â€" exhibit ‘C’.
(iv) The voter Identity Card of the wife and son of the defendant â€" exhibit ‘D’ collectively.
(v) The Civil Defence Certificate issued by the defendant â€" exhibit ‘E’.
(vi) Certificate issued by the Welfare Home â€" exhibit ‘F’.
(vii) Ration Card of the defendant and his wife â€" exhibit ‘G’ collectively.
(viii) Salary Certificate of the defendant â€" exhibit ‘H’.
(xi) Telephone Bill of the defendant â€" exhibit ‘I’
(x) And the certified copy of the judgment passed in Title Suit No.495 of 1999 â€" exhibit- J.
None of the said documents proves that the defendant was allotted the suit property by reason of his being in the service or employment of the
plaintiff.
Considering the materials on record so also the submissions of the leaned advocates for the parties we hold that the defendant, has failed to
discharge the onus to prove that he was allotted with the suit property by reason of his being in the service or employment of the plaintiff,
consequently the defendant is liable to be evicted from the suit property.
In the present case there is another interesting feature. The plaintiff by a letter dated February 28, 2017 sought some information from the
Calcutta University Institute Auditorium regarding the defendant’s employment with the said institute under the provisions of the Right to
Information Act, 2005. The Member Secretary being the competent officer under the provisions of the aforesaid Act vide his letter dated March 16,
2017 informed the Administrative Officer of the plaintiff as follows:-
“1. Sri Rabi Chandra was an employee under the Calcutta University Institute Auditorium. His date of appointment is 01.11.1994.
Sri Rabi Chandra has retired from service on superannuation on 31.10.2016. His designation was Assistant Electrician.
Sri Chandra is yet to get any retirement or pension benefits.
The Government of West Bengal has taken over the charge of the management and control of the Calcutta University Institute Auditorium in
December, 2015. It does not come under the purview of the University Grant Commission.â€
The said letter has been proved in the suit and has been marked as exhibit- 4.
The claim of the defendant that the suit property was allotted to him by reason of his being in the service or employment of the plaintiff is falsified
by exhibit â€" 4. The said exhibit also proves that the defendant joined Calcutta University Institute Auditorium on November 01, 1994 and retired
from his said service on October 31, 2016. The defense of the defendant of such tenancy is therefore, wholly malafide.
In view of the discussion made above the appeal fails. The judgment and decree dated September 14, 2017 passed by the learned Judge 10th Bench,
City Civil Court at Calcutta in Title Suit No. 498 of 1999 is affirmed. The appeal being FAT No.660 of 2017 is dismissed with cost of Rs.50,000.00/-
(Rupees fifty thousand) only to be paid by the appellant to the respondent within one month for date.