Kalyan Jyoti Sengupta, J.
1. I have had the advantage of going through the draft Judgment of my Learned Brother I cannot do anything but to record my agreement with His Lordship's findings and ordering portion. But I feel my task will remain incomplete if I do not add a few words to supplement to the Judgment prepared by my Learned Brother.
2. The respondents/plaintiffs sued appellant for his eviction on the ground that the appellant and the second defendant viz. one Deoki Shaw are the trespassers in one room in the ground floor of Premises No. 109B, Keshab Chandra Sen Street, Kolkata (hereinafter referred to as the suit premises). The respondent/plaintiff No. 1 after having purchased the suit property jointly with the plaintiff No. 2 in the month of July, 1980 and having considered the list of tenants supplied by the vendors found that the appellant and the second defendant are not figuring as the tenants in the list supplied by the vendors through his learned lawyer, called upon them to establish their right to remain in possession. But they failed to satisfy the plaintiffs. As such, the suit was filed for treating them to be the trespassers and for recovery of khas possession. The second defendant did not file any written statement nor entered appearance to contest the suit. First defendant to contest the suit filed the written statement and took the stand that his father Bedu Shaw was joint tenant with Deoki Shaw. On death of the said Bedu Shaw, the first defendant, being the, son, heir and legal representative, claimed that he was entitled to inherit the right of joint tenancy and as such he cannot be termed to be a trespasser nor he is liable to be evicted.
3. On the aforesaid stand taken by the parties in their pleading the learned Trial Judge rendered the Judgment of passing decree deciding the issue as to whether the first defendant is the heir and legal representative of the said Bedu Shaw, meaning thereby whether the first defendant is a joint tenant or not.
4. Having read the pleadings and the issues framed it is clear that the burden of proof of the case of the defendant rested with the first defendant, since the plaintiff denied that the first defendant was the son or heir of the said Bedu Shaw.
5. Similarly in the written statement the appellant/first defendant denied ownership of the plaintiff. So, plaintiff had to prove the ownership. It appears from the record that in order to prove the case of the plaintiff they have examined six witnesses whereas defendant examined himself alone to prove his own case of father and son relationship. Apart from oral evidence first defendant adduced documentary evidence viz. certificate of a Prodhan (Mukhia) of the concerned Gram Panchayat, and a letter of attornment purported to have been addressed amongst others to the appellant and a rent receipt issued by the vendor in the name of Bedu Shaw and the second defendant.
6. The learned Trial Judge reading the evidence both oral and documentary and having gone through the pleadings recorded his finding of ownership of the property in favour of the plaintiff but held that the appellant failed to prove the case of relationship of father and son made out by the first defendant. Learned Trial Judge observed that the letter of attornment is a forged and manufactured one for the reasons that the nature and style of the writing in the body of the letter of attornment and the writing of the names and the addressee in the letter of attornment are in different hands and inks. The certificate of the Gram Prodhan has also been disbelieved as being manufactured. So, the case of relationship of father and son between Bedu Shaw and the first defendant has not been established.
7. The learned Counsel for the appellant, while assailing the Judgment and findings of the learned Trial Judge, submits that the learned Trial Judge committed legal error by shifting the burden upon the appellant to prove the case of tenancy as the burden should have been discharged by the respondent/plaintiffs to prove that the defendants are trespassers. The case of trespassing has not been enquired into nor proved. He further contends that there was no suggestion in the evidence or in the argument that any of the documents exhibited by the first defendant is a forged one. So, the learned Trial Judge ought not to have allowed to make out his own case. Upon reading of the evidence it will appear at the most that the hand-writing of the name of the addressee in the letter of attornment being exhibit C has not been proved but that does not mean that it has been manufactured or written for the purpose of filing of the suit. It is an admitted position that Bedu Shaw and the second defendant are the joint tenants. The letter of attornment shows that the appellant along with the second defendant has been accepted as a tenant by one of the vendors, so the story of non-supply of the names of the tenants without mentioning the appellant's name is irrelevant and immaterial and such case should not have been believed. Even after transfer of the property the rent receipt was issued in the names of Bedu Shaw and the second defendant. As such, the rent was tendered to the plaintiff but the same was not accepted. Thereafter it was remitted by money order followed by depositing the same with the rent control challan. He, however, is candid to say that the rent control challan has not been exhibited in this case.
8. The learned Counsel for the respondents on the other hand urges that there is no reason to interfere with the well-reasoned Judgment and decree passed by the learned Court below. The learned Court below has held upon examining the document being the letter of attornment that it is a manufactured one and the certificate issued by the Prodhan of the Gram Panchayat was also found to be forged and manufactured. If the body of the letter of attornment is read it will be clear that this document is created mentioning the names of the appellant and the second defendant. The certificate issued by Mukhia viz. Prodhan of the Gram Panchayat cannot be said to be a public document. Naturally correctness of the contents of the document has to be proved by a competent person. No one has come forward to prove either correctness of the contents of the same or otherwise. The rent receipt which has been adduced as an evidence is of no value since it was issued by one of the vendors after the property was transferred in the month of August, 1980.
9. My Learned Brother has extensively dealt with the argument of both sides and also examined the Judgment and findings of the learned Court below in detail. I think that learned Trial Judge has come to the correct conclusion that the appellant has failed to prove the case of father and son relationship. The certificates issued by the Prodhan of Gram Panchayat being Exhibits D(1) and D(2), as rightly contended by the learned Counsel for the respondent are of no value as these are not public documents within the meaning of Section 74 of the Evidence Act. These documents are of private character. So correctness of the contents of the document should have been proved by either of the defendants. Admittedly, none has come forward to do so. Moreover, if the contents of the certificates are read then it would appear that the same are not issued in official act in usual course of business. None of the documents simply does supply information as to the exact date of death. It is not certified that the contents of the same is extracted from the death register. Moreover, there is a glaring inconsistency in between the information recorded in the purported certificate and the oral testimony of the appellant himself who says on oath that Bedu Shaw died in the month of February, 1978 whereas this certificate says that was to be in December, 1978. How a Prodhan could remember month and year of a particular person after ten years of his death unless he consults the register. On the face of the document it appears to us, as rightly observed by the learned Trial Judge, that the document was procured from the Prodhan who had written the same for the purpose of creating evidence in the suit. I, therefore, cannot accept the argument of the learned Counsel for the appellant to upset the findings of the learned Trial Judge in this regard. As far is the letter of attornment being Exhibit C is concerned, I am in agreement with the contention of the learned Counsel for the respondent that careful reading of this document suggests that it is created and/or manufactured adding the names of the appellant and the defendant No. 2. Whether a case of genuineness and ingenuineness of a document is made out or not is immaterial. If the learned Judge finds that there is ample intrinsic evidence that the document is a manufactured one, he has ample power to hold so. The learned Trial Judge has exactly done here. We, therefore, hold that his finding does not call for any interference.
10. We also reject the contention of the learned Counsel for the appellant that the learned Trial Judge wrongly held that the rent receipt did not help in this case as it is a document issued by the vendor after transfer of the property. Moreover, it does not appear by the subsequent act and conduct that the appellant and the defendant No. 2 in any matter asserted their matter asserted their alleged right of tenancy. I, therefore, observe that the appellant has failed to prove that he is the son of the Bedu Shaw who was admittedly a tenant along with the defendant No. 2.
11. Moreover, assuming that the appellant was the son and heir of Bedu Shaw he cannot claim as a matter of right joint tenancy by way of inheritance because all heirs and legal representatives cannot claim right of inheritance of tenancy right as the definition of Section 2(h) of the West Bengal Premises Tenanev Act, 1956 does not permit so. Section 2(h) of the said Act is set out hereunder:
'tenant' means any person by whom or, on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.
12. Thus, it is clear that the only heir, heirs or heiresses who, at the time of death, resided and stayed with the deceased tenant are entitled to inherit the right of tenancy but not otherwise. There is no evidence that the appellant and defendant No. 2 at the time of death of Bedu Shaw were residing or staying with him. Rather from the evidence it is found that he was carrying on business at Khiddirpur not at the suit premises. On this score also the claim of tenancy of the first defendant is not established. Therefore, the suit has rightly been decreed and appropriate relief has been granted by the learned Trial Judge.
Sanjib Banerjee, J.
13. A decree of eviction has been assailed in this first appeal by an occupant who has been held to be a trespasser.
14. The subject matter of the suit was a room in the ground floor of Premises No. 109B, Keshab Chandra Sen Street, Calcutta - 700009. The plaintiffs claimed that they had purchased the entirety of the land and building at the said premises in July 1980. The room in question was let out by the erstwhile owners jointly in favour of Bedu Shaw and Deoki Shaw and it is undisputed that rent receipts were issued for the princely sum of Rs. 45/- in the names of such joint, but unrelated, tenants.
15. The suit was filed against the appellant and one Deoki Shaw in July of 1981. The two paragraphs forming the basis of the plaintiffs' claim in the refreshingly short plaint need to be noticed:
3. That it transpires from the list of the tenants handed over to the plaintiffs by the previous owners/landlords of the premises in question as stated above that one, Bedu Shaw and one, Deoki Shaw jointly were the tenants in respect of the said room at the ground floor and it transpires that the said Bedu Shaw died.
4. That the defendant No. 1 is claiming to be the successor of the said Bedu Shaw since deceased. The plaintiffs have reasons to believe that the defendant No. 1 posing himself as legal representative of late Bedu Shaw is not the real successor of the said deceased. The defendant No. 2, Deoki Shaw is also posing himself as Deoki Shaw but the plaintiffs have reasons to believe that he is not the real person. They were asked to prove things identity by documents or by any reliable measures. But they have wilfully failed to adduce any evidence in support of their identity. It should be noted in this connection that the death of Bedu Shaw was confirmed by both the defendants.
16. The name of the second defendant was struck out by an order of March 1982 and the suit proceeded against the appellant who, it appears from the evidence, continued to retain possession of the room, though, it has been suggested by the plaintiffs that the appellant did not reside at the suit premises.
17. The appellant claimed to be a son of one of the erstwhile tenants, Bedu Shaw and based his right to remain in occupation as an heir. There is no direct averment in the written statement that the appellant was ordinarily residing with Bedu Shaw at the time of his death. That apart, the appellant denied the plaintiffs' title to the premises in question and also asserted that the other joint tenant, Deoki Shaw, had also died and 'his full younger brother Sri Babu Lal Shaw being the legal heir and successor of....Droki Shaw has become the virtual tenant in respect of the tenanted room at the suit premises and as such the Defendant No. 1 and Sri Babu Lal Shaw have become the joint tenants and they have been occupying the said tenanted room legally.'
18. The two aspects regarding the appellant questioning the plaintiffs' title to the property and the assertion relating to the alleged heir of Deoki Shaw are otherwise irrelevant. They deserve mention only in the context of the credibility of the defence and the stand taken by the appellant at the trial.
19. Of the six witnesses called by the plaintiffs, the first, the third and the fifth were practising lawyers. The plaintiffs' first witness testified as a constituted attorney of the plaintiffs and produced the relevant Power of Attorney. The third witness came to support the Deed of Sale executed at the time of the plaintiffs acquiring premises No. 109B. The fifth witness, however, deposed in his capacity as one of the erstwhile joint owners of the property.
20. The second plaintiff examined himself and confirmed having executed the Power of Attorney in favour of the first witness and also claimed as one of the joint owners of the propery.
21. The appellant examined himself and examined a lawyer of the City Civil Court who rendered the English translation of the document produced by the appellant as the sheet-anchor of his defence.
22. The appellant relied on a certificate in Hindi said to have been issued on August 11, 1988 and bearing a rubber stamp of the Mukhia of a Gram Panchayat. The English translation of such certificate reads as follows:
Certified that Sri Durga Shaw son of Late Bedu Shaw is resident of Vill. & P.O. Nemdargunj, P.S. Akbarpur, Dist. Nawda (Bihar).
His father Late Bedu Shaw died ten years back. He generally resided at 109B, Keshab Chandra Sen Street, Calcutta. His only heir is his son Durga Shaw.
23. Such certificate and the authenticity thereof was disbelieved by the learned Court below. That is the main plank of the grievance of the appellant before us. It has been urged that the document was a public document and was, as such, immune to challenge.
24. Apart from that certificate, the appellant had also relied on an undated letter issued by Smt. Gouri Bose, one of the erstwhile owners of the premises, which reads as follows:
Dear Sir,
You were originally a tenant in respect of room in the ground floor of premises No. 109B, Keshab Chandra Sen Street, Calcutta-9 under Sri Arup Kumar Bose, Sm. Ketoki Dey, Sm. Tapati Singh and myself.
We have sold the aforesaid building to one Sri Shyam Sunder Chatterjee and Ramdhani Singh by executing a sale deed on Saturday the 26th July, 1980.
By virtue of the sale deed Sri Ramdhani Singh and Shyam Sunder Chatterjee have been become the absolute owner of the above premises have become entitled to realise all rents that are due and owing from you in respect of your tenancy which please note.
Yours faithfully
[Gouri Bose]
25. The other document that was relied upon by the appellant and also pressed into service before us was a rent receipt said to be for the month of August 1980 issued in the names of Bedu Shaw and Deoki Shaw by the erstwhile owners.
26. It was urged on behalf of the appellant that the learned Court below erred in disbelieving the certificate and the rent receipt and in holding that the letter of Smt. Gouri Bose had been tampered with when there was no case of tampering made out by the plaintiffs-respondents. It was submitted that in the event the charge of tampering with the letter of Smt. Gouri Bose had to be established, at the least the document was required to be examined by an expert. This not having been done and the three documents relied upon by the appellant having been wrongly discarded, the decree was liable to be reversed.
27. Learned Counsel for the appellant also challenged the principal witness called by the plaintiffs. He urged that a constituted attorney could not depose on behalf of a party and the testimony of the plaintiffs' first witness deserved to be rejected in full. In support of such contention, he cited 2004 AIR SCW 7064 Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. In that case the Supreme Court held that Order 3 Rules 1 and 2 of the Code of Civil Procedure empowered the holder of a Power of Attorney to act on behalf of the principal but the word 'acts' would not include deposing in place and instead of the principal. If the Power of Attorney holder had rendered some acts on the basis of the Power of Attorney, he may depose in respect of such acts, but it would not be permissible for him to depose for the acts done by the principal. The principle laid down in that Judgment is that a witness may depose on matters in respect of which he has personal knowledge.
28. A further Judgment of the Supreme Court reported at : AIR2004SC175 Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr. was relied upon in furtherance of the contention of the appellant that the rent receipt relied upon by the appellant for the month of August 1980 was not open to question by the plaintiffs.
29. Learned Counsel for the respondents in refuting the submissions made on behalf of the appellant, challenged the authenticity of the certificate and denied that it could be said to be a public document. The rent receipt was said to be irrelevant and, if found relevant, to be unreliable as the appellant had admitted that the sale relating to premises No. 109B had been completed in July 1980 and there could be no question of the erstwhile owners being entitled to rent for the month of August 1980. On the undated letter of Smt. Gouri Bose, it was submitted that the names of the alleged addresses plainly appeared to have been subsequently inserted and the disinterested oral evidence of the plaintiffs' fifth witness would bear that out. That witness, in cross-examination had admitted that the handwriting and the signature on the undated letter were, indeed, of his mother, but the names of the addressees appearing in the relevant exhibit were not in the handwriting of his mother.
30. We have seen the originals of the three documents. The certificate, described on behalf of the appellant as a public document, is on a plain white sheet, half the size of a foolscap paper. The writing on that paper is not in the hand of the signatory below whose signature a rubber stamp has been affixed. It does not appear to be any record of the kind that is included in Section 74 of the Evidence Act. It is also not a certified copy of a public document within the meaning of Section 76 of that Act.
31. At the highest, even if the contents of this certificate were taken to be correct, the only matter on which the Mukhia could have thrown any light was as to whether the appellant was the son of Bedu Shaw. The other aspect that has been included in this certifiate, that of the appellant being the only heir of his deceased further, could not have been pronounced upon by the Mukhia nor would that be conclusive. The certificate does not disclose the basis of the recording therein nor does it refer to any record or other material on which the statements contained therein were based. The author of that certificate was not examined.
32. Notwithstanding that it is the plaintiff who is required to prove his case to entitle him to Judgment, the defendant in a suit for eviction on the grounds of his being a trespasser, has to discharge the onus of proving the two ingredients that would entitle him to possession as tenant as provided under Section 2(h) of the West Bengal Premises Tenancy Act, 1956 that governs the proceedings. Section 2(h) of the 1956 Act provides as follows:
2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,
(h) 'tenant' means any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be payable and includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.
33. Undoubtedly, it was for the appellant to demonstrate that he was an heir of one of the erstwhile joint tenants and that he was ordinarily residing with such deceased joint tenant at the time of his death. On the first count, the appellant before us merely relied on the certificate said to have been issued by the Mukhia without examining the Mukhia. On the second count the appellant failed to aver or prove that he ordinarily resided with Bedu Shaw at the suit premises at the time of Bedu Shaw's death.
34. That would be conclusive as against the appellant. But as the other two documents have also been discussed and virtually rejected in the Judgment of the learned Court below and arguments have been made thereon, those must also be looked into. In the impugned Judgment, the learned Court below has come to a finding that the rent receipt of August 1990 was a manufactured document. It is not necessary to ascertain whether the rent receipt was genuine. It is irrelevant. Once the appellant had admitted that the sale relating to premises No. 109B had been completed in July 1980, there was no question of any rent being received by the erstwhile owners for any period subsequent to July 1980. Further, the alleged rent receipt is made out in the names of the original joint tenants and, admittedly, Bedu Shaw had died prior to August 1980. In any event the alleged rent receipt would not further the appellant's case.
35. Two of the three documents primarily relied upon by the appellant having been found to be of no assistance in the appellant's defence, it is the undated letter which assumes some significance. The text of the letter has been set out hereinabove. If the addressees of such letter were as the appellant would have us believe, the very first sentence of the letter would be rendered meaningless. Apart from the fact the names of the addressees on the top left of that letter appear clearly to be of a different hand, this letter with the names of the addressees cannot be reconciled with the rent receipt relied upon by appellant. If this letter could be addressed to the appellant and Deoki Shaw, there was no need for the rent receipt of August 1980 to be addressed in the names of the original joint tenants. Bedu Shaw and Deoki Shaw.
36. We find no error in the impugned Judgment in dealing with the three documents that the appellant had primarily relied on.
37. Since we have held that it was incumbent on the appellant to establish that he was an heir of Bedu Shaw and was ordinarily residing with Bedu Shaw at the suit premises at the time of Bedu Shaw's death, the oral evidence of the plaintiffs' first witness loses all significance, particularly, in the context. The evidence of the plaintiffs' first witness was for the purpose of proving the plaintiffs' title to premises No. 109B, in the light of the appellant's denial of the same in the written statement. The registered deed was produced in evidence and oral testimony in furtherance of the transaction was unnecessary. Further, the second plaintiff was called to the box and asserted the plaintiffs' title. In any event the appellant had in his oral evidence admitted the plaintiffs' title. The undated letter of Smt. Gouri Bose, relied upon by the appellant, was also admission of the plaintiffs' title. It would be useful to recall the appellant's testimony in that regard:
After the death of my father, myself and Deoki Shaw continued to be a tenant in the suit premises. We paid rent @Rs. 45/- per month to the employee of the landlady Gouri Bose and got receipts. Gouri Bose and her son sold the ownership to the present plaintiffs. After transferring the interest to the present plaintiffs then owner Gouri Bose and her son sent a letter of attornment to us. I have filed that letter of attornment in this suit. After receiving the letter of attornment we made attempt to pay rent to the new house owner i.e. the plaintiffs but they did not accept rent from us....
38. It is, thus, evident that a most frivolous stand as to the plaintiffs' alleged lack of title was taken in the written statement. A similar equivocal stand was taken by the appellant as regards Deoki Shaw and the alleged heirs of Deoki Shaw. As noticed above, the appellant had claimed in the written statement that Babu Lal Shaw, a full brother of Deoki, was, along with the appellant, jointly in posession of the suit premises. In his oral testimony, however, the appellant had this to offer on the matter:
One Babulal, a son of Deoki Shaw (then says) a brother's son of Deoki Shaw, (then says) a brother of Deoki Shaw, (then says) one Jadhu Shaw, brother of Deoki Shaw lives in that premises and deals in oil, like me. (Then says) Babulal is the name of a person having no relation with Deoki Shaw.
39. Such conduct of the appellant does him no credit and exposes the certificate of the Mukhia produced by him to greater suspicion.
40. On the strength of the first case (2004 AIR SCW 7064) cited on behalf of the appellant, even if that part of the evidence of the plaintiffs' first witness of which such witness had no direct personal knowledge is discounted, it does not further the appellant's defence.
41. The second case (AIR 2004 SC 175) cited on behalf of the appellant is clearly distinguishable in the matter of the proposition for which it was cited and is otherwise an authority that would demolish the appellant's defence based on the certificate issued by the Mukhia. In the cited Judgment, the Supreme Court held that upon the plaintiff having admitted the signatures on the rent receipts relied upon by the defendants in a suit for eviction, there was no further burden of proof on the defendant to lead additional evidence in proof of the due execution of the rent receipts. In the present case, there is no admission to any kind relating to the rent receipt for August 1980. In any event such document is irrelevant in the backdrop of the appellant's admission that in July 1980, premises No. 109B had stood transferred to the plaintiffs.
42. It is the other aspect of the second decision cited by the plaintiffs that is significant. In paragraph 16 of the Judgment, it has been held as follows:
16. Reliance is heavily placed on behalf of the appellant on the case of Rarnji Dayawala and Sons (P) Ltd. (supra). The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated as have been exhibited as an admitted documents.
43. If we apply the above test to the certificate relied upon by the appellant, surely the contents of that certificate had to be proved before they could be accepted. No attempt was made on behalf of the appellant to have the contents of that certificate proved.
44. We do not find any merit in the appeal and the same is dismissed. The Judgment and decree of the learned Court below are affirmed. There will be no order as to costs.
45. We are informed that the appellant has been depositing the monthly occupation charges at the rate of Rs. 45/- per month in the learned Court below. Stay of the decree of eviction was earlier granted by this Court on condition that such deposit being made. The stay is vacated. The decree for eviction will become operative forthwith. The respondents would be entitled to seek the amount deposited in the learned court below in accordance with law.
Urgent xerox certified copy of this Judgment, if applied for, be given to the parties on the usual undertakings.