Bhagaram Shaw Vs. Nihar Bala Manna and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/866117
SubjectTenancy
CourtKolkata High Court
Decided OnMar-16-2006
Case NumberF.A. No. 57 of 2004
JudgePrabir Kumar Samanta and; Maharaj Sinha, JJ.
Reported in(2006)3CALLT7(HC),2006(4)CHN663
ActsCalcutta Thika Tenancy Acquisition and Regulation Act, 1981 - Section 3(8) ;;West Bangal Premises Tenancy Act, 1956; ;Rent Restriction Act; ;Evidence Act - Section 102
AppellantBhagaram Shaw
RespondentNihar Bala Manna and ors.
Appellant AdvocateHarish Tandon and; Sandeep Tiwari, Advs.
Respondent AdvocateDebasish Foy,; Sharmishtha Ghose Sharma and; Sanker Roy, Advs.
DispositionAppeal dismissed
Cases ReferredSatyanarayan and Ors. v. S.C. Chunder
Excerpt:
- maharaj sinha, j.1. this is an appeal against the judgment and decree of the learned judge, 13th bench of the city civil court, at calcutta, dated 29th august, 2001 passed in title suit no. 1531 of 1989. the learned judge alter the trial of the above suit held pat the plaintiffs in the said suit, namely the respondents herein, were legally entitled to get the decree for eviction against the defendant, namely the appellant herein from the suit premises and as such' decreed the suit in favour of the plaintiffs/respondents by directing the appellant to vacate the suit premises within a specified time failing which the plaintiffs/respondents were 'entitled to have the decree executed'.2. the case of the original plaintiff, prafulla manna, since deceased, namely the late husband of the first respondent in this appeal and the father of the second, third, fourth, fifth and the sixth respondents herein, was that he became the owner of the holding no. b/162/1/h/32, bipin bihari ganguly street. calcutta, as he, on 15th november. 1978, purchased the structure of the said premises consisting of three rooms, one kitchen with a common passage from one m/s. friends union tailor pvt. lid. bandhab bastralaya.3. according to the plaintiff the defendant, namely the appellant herein, bhagaram shaw was a man of one sri rathin bose who was one of the directors of the said m/s. friends union tailors pvt. ltd. bandhav bastralaya and with the permission of the said director he started residing in one of the said rooms (room no, 3) of the said premises.4. since the purchase of the said structure of the said premises the original plaintiff had been paying rent thereof to one sri janak ranjan chowdhury' 'who happened to be the 'landlord of the said structure and after coming into force of the thika tenancy act' he started paying rent to the government of west bengal on a regular basis.5. the above holding number was duly mutated in favour of the original plaintiff by the calcutta municipal corporation also. since the defendant/ appellant was in permissive occupation of the said room (room no. 3) at the time when the original plaintiff purchased the said structure, the defendant/appellant assured the original plaintiff that he would hand over the peaceful vaca it possession of the said room of the said premises as and when required by the plaintiff, namely the husband and the father of .he respondents herein.6. since the appellant was in permissive occupation at the time of purchase of the said structure, the original plaintiff also allowed him to be in permissive occupation of the said room (room no. 3) on the basis of the above' assurance. the original plaintiff on many occasions requested the appellant to vacate the room and hand over the vacant possession of the said room (room no. 3) but since the appellant did not vacate, the plaintiff on 20 february 1989 issued a notice requesting the appellant to 'deliver the peaceful and vacant possession' of the said room of the said premises after expiry of one month from the receipt of the notice and though the said notice was received by the defendant/appellant but he did not acate the room and as such the plaintiff had to file the above suit for obtaining vacant possession of the said room from the defendant/appellant.7. the appellant contested the above suit an i in his written statements took the stand that he became a thika tenant of a portion of the premises no. 162, boubazar street, subsequently known as bipin bihan ganguly street, calcutta, and the owner of the structure standing at the said premises and consequently denied that the original plaintiff became the owner of the said structure by virtue of any purchase thereof. the defendant/appellant merely denied the purchase in the written statement, as according to the defendant/ appellant the original plaintiff did not disclose any payment showing that he purchased the said structure and the appellant called upon the original plaintiff to prove his alleged ownership of the structure in question. the appellant also took the stand in his written statement that he was never in, permissive occupation of the premises in question but 'he was holding one room measuring about 9' x 11' in the structure standing at premises no. 162. bipin bihari ganguly street, calcutta as a monthly tenant under m/s. friends union tailors private ltd., the owner of the structure in more than 25 years at a monthly rent of rs. 25/- payable according to english calendar'.8. it was also asserted by the appellant in his written statement that the above company friends union tailors pvt. ltd used to grant receipt to the appellant 'for such payment of rent' and he 'paid rent to the said company upto 15 november 1978 on getting receipts'. he also took the stand that the room in his occupation did not bear any number and that he was in occupation/possession of the said room as a monthly tenant and the said tenancy was still continuing in the eye of law.9. as aforesaid, the appellant denied that the original plaintiff purchased the structure at the premises in question or that the original plaintiff was paying rent regularly to the landlord of the said structure or to the government of west bengal as alleged by the original plaintiff. the appellant also denied the factum of mutation in favour of the original plaintiff by the calcutta municipal corporation. the original plaintiff never approached the appellant nor he had shown any document to the appellant regarding the alleged purchase of the said structure at the premises in question and upon inquiry it was ascertained by the appellant that no document was executed by the said m/s. friends union trailors pvt. ltd. in favour of the original plaintiff transferring its right of thika tenancy and the ownership of the said structure in question. he also said that the records of the calcutta municipal corporation were manipulated by the original plaintiff and at the same time said that mere mutation in favour of the original plaintiff by the calcutta municipal corporation did not confer any right of ownership in favour of the original plaintiff. the appellant alto took the stand that he never recognized the original plaintiff as his landlord nor 'he attorned the tenancy in question to the original plaintiff.10. since the appellant was continuing in possession of the room in question as a monthly tenant the question of revocation of any alleged licence to occupy the room in question could not arise and that his monthly tenancy was never validly determined and that he was entitled to all protection against eviction under the provisions of the west bengal premises tenancy act 1956.11. although as much as seven issues were framed by the learned trial judge but having regard to the facts of the case and the respective stands of the parties, namely the original plaintiff and the defendant/appellant herein, in my opinion, the only principal issue that was sufficient to decide and determine the real controversy or controversies between the parties to the suit was whether the defendant/appellant was in permissive occupation or rather a licensee of the premises in question or he was a monthly tenant of the suit premises and in the language of the learned trial judge this issue was framed as follows:is the defendant a licensee or a monthly tenant in respect of room in suit?' the other issues such as whether the notice that was issued by the original plaintiff determining the alleged licence in favour of the appellant was a legal and valid one and binding upon him, or whether the alleged licence of the appellant was lawfully revoked and determined were, in my opinion, merely incidental and dependant on the determination of the above principal issue.12. in support of the case made out in the plaint various documents were tendered in evidence such as the original sale deed executed in favour of the original plaintiff by the said m/s. friends union tailors pvt. ltd. bandhav bastralaya, the rent receipts showing payment of rent by the original plaintiff firstly, in favour of the said janak ranjan chowdhuy who happened to be 'the alleged landlord' of the said 'structure' and then payment of rent in favour of the government of west bengal after the introduction of thika tenancy act, the municipal assessment book, municipal tax bills raised on the original plaintiff and the receipts of payment of municipal taxes, postal receipt of the notice sent by the original plaintiff etc.13. two of the sons of the original plaintiff, prafulla kr. manna, namely subrata manna and dilip kr. manna gave evidence in support of their case and they also tendered the above documents and proved the same. the documents tendered by the sons of the original plaintiff, namely the 4th and the 5th respondents herein, were marked as exhibits. the said original sale deed in favour of the original plaintiff prafulla kr. manna was marked as exhibit-i. the above-mentioned rent receipts issued in favour of the original plaintiff - prafulla kr. manna were marked as exhibit-2. the above municipal assessment books were marked as exhibit-3. the bills raised by the calcutta municipal corporation on the original plaintiff were marked exhibit-4. the receipts for payment of municipal taxes were marked exhibit-6. the other documents tendered by the sons of the original plaintiff such as exhibit-7, exhibit-8, exhibit-8/1 and exhibit-9, however, need not be mentioned in detail for the purpose of considering whether the respondents herein were able to prove the case pleaded by the original plaintiff, namely their late father - prafulla kr. manna, to obtain the decree for eviction against the appellant herein.14. after having considered the evidence of the two sons of the original plaintiff-prafulla kr. manna who are the 4th and the 5th respondents herein and the documents tendered by them in support of the claim or claims in the suit, i am of the opinion that the learned trial judge was perfectly able to evaluate the evidence on behalf of the original plaintiff and correctly held that the original plaintiff, in fact, purchased the structure on the premises in question upon payment of consideration of rs. 8,000/- and that the original plaintiff validly and legally paid rent as thika tenant and the thika tenancy in favour of the original plaintiff - prafulla kr. manna was very much proved on the basis of the documents which were tendered in evidence in support of such tenancy.15. the appellant on the other side, i find, apart from denying the case of the original plaintiff in his plaint did not even make any attempt to prove or substantiate stand taken by him in the written statement to any extent whatsoever. the appellant apart from raising some frivolous disputes regarding the descriptions of the room in his occupation and apart from asserting that he was a tenant of the room in question could not produce or was unable to produce a single document in support of his alleged tenancy, namely, either as thika tenant or a tenant under the rent restriction act, namely the west bengal premises tenancy act. not a single rent receipt was produced and the receipt which was produced was not proved as rent receipt and the same was kept as marked for identification.16. in this regard the findings of the learned trial judge which i accept to be the correct findings on the basis of the proved facts are mentioned below:'the defendant categorically has stated in his written statement that he was the tenant in the premises in question. to establish this he has filed one document marked 'x' for identification. this document has not been marked 'x' exhibited. so i cannot take into consideration in my judicial notice. moreover the defendant has also filed one document i.e. exhibit-a the copy of the register wherein i find that name and address of the owner is prafulla manna, the predecessor of the plaintiff but the name of the tenant is there but not the name of the defendant rather bhavanath shaw. so the documentary evidence in question there is nothing to show that the defendant is or was the tenant in the premises in question. the defendant alone says about his tenancy over the premises in question but no other corroborating evidence is there as regards tenancy of the defendant in the premises under the plaintiff or under the m/s. friends union tailors pvt. ltd'.17. it appears from the judgment of the learned trial judge that the learned advocate on behalf of the defendant sought to make out a case that the structure on the land in question should be regarded as immovable property and since the conveyance executed in favour of the original plaintiff - prafulla kr. manna by the said m/s. friends union tailors pvt. ltd, bandhav bastralaya was not a registered document the same could not be accepted in evidence.18. the learned judge, in my opinion, rightly rejected such contention as the learned judge found on facts, and, in my opinion, found quite correctly, that the structure in question, namely a room which was made only of tins, could not be regarded as immovable property and as such rightly rejected the contention on behalf of the defendant/ appellant.19. after having discussed the evidence adduced by the parties, namely the above respondents and the appellant herein and the documents in support of the respective cases of the appellant and the respondents, the learned judge, in my opinion, correctly formed the opinion that the appellant apart from asserting that he was a tenant in his written statement was unable to prove any semblance of any right or title in respect of the premises in question in his favour to any extent whatsoever.20. the learned judge again quite correctly found that the occupation and/or possession of the appellant could at best be regarded as permissive one and the learned judge quite correctly held that no formal notice terminating and determining the permissive occupation of a licensee or a person who is permissive occupation of a premises was required to be served, though in the instant case, such a notice was, in fact, served, and the mere filing of the suit could be regarded as enough a notice for revocation of licence and in any event, since the defendant/appellant failed to establish his tenancy of any kind, either a thika tenant or a tenant under the rent restrictions act or tenant under any provisions of any statute, he was not entitled to any previous notice before the institution of the suit for obtaining possession of the suit premises. there was no occasion, therefore, for the learned judge to accept any part of the alleged defence as sought to be made out from the witness box by. the defendant/appellant and on the basis of his stand taken in his written statement.21. the learned counsel on behalf of the appellant, however, sought to argue that even in a case where a defendant is not in a possession to show his title to the property in question he can still ask the plaintiff to prove his title to the property and the plaintiff has a corresponding obligation to show that his title to the property or the document on the basis of which he claims that he has title to the property is a superior title to that of the defendant and in support of his above contention he relied on a decision in venkatasubba v. vigneswaradu, reported in air 28 mad 840.22. indeed, in the above case the division bench of the madras high court in dealing with the provisions of the evidence act under section 102 was pleased to observe that in a suit for ejectment, 'even though the defendant has no title, he can still put the plaintiff to the proof of his title and the plaintiff has still to show that the sale deed on which he relies as having given him a title superior to that of the defendant is a valid one'. i do not think there is any scope of raising doubt as to the above proposition of law. the above observations of the division bench of the madras high court were based on the provisions of section 102 of the evidence act.23. however, in the instant case, the sale deed, which was relied on by the original plaintiff in support of his claim or claims in the suit, had and has remained unquestioned. the sale deed, as i find and as was quite correctly found by the learned trial judge, is a valid document which was proved in evidence and against which document the appellant herein had or has not been able to raise any doubt as to its validity either by producing any evidence from the witness box or by any evidence on record. as a result, the decision in venkatasubba (supra), of the division bench of madras high court cannot come to any aid to the case or defence which was sought to be made out by the learned counsel on behalf of the appellant in the first place.24. needless to mention, the decision in the venkatasubba's case was based on its own facts and the observations of the division bench (at page 845 of the report) make that position quite clear. as aforesaid, the appellant, in the instant case, has, in my opinion, not been able to prove anything in his favour apart from denying the case of the plaintiff in the first place.25. the learned counsel for the petitioner also relied on a decision of the supreme court in suresh chand v. kundan and anr. reported in (2001)10 scc 221 in support of his contention that the structure on the land in question which had and has been in occupation of the appellant herein should be regarded as an immovable property and if it is treated to be an immovable property then the question of applying the provisions of thika tenancy act really would not arise.26. in the ease of suresh chand (supra), the supreme court was concerned with the question whether the trees standing on the land in question in that case were to be treated to be part of the land and whether the interest in the land would also include the trees standing thereon and in a case where the land owner sold his right, title and interest in the land who such sale would include the trees standing thereon in the absence of any express or implied agreement to the contrary. i am in little difficulty in appreciating as to how and in what way the above case can be said to have any application to the facts of the present case at all. in my opinion, therefore, the decision of the supreme court in suresh chand's case need not be considered further for my present purpose.27. the supreme court in the case of punjab urban planning and development authority v. shiv saraswati iron and steel re-rolling mills reported in : air1998sc2352 was dealing with a case where the plaintiff in the suit sought for specific performance of the contract, a contract for re-rolling of ms bars out of rails and blooms to be supplied by the plaintiff, namely the appellant before the supreme court to the respondent mill. the suit of the plaintiff/appellant for specific performance was partly decreed and the counter-claim of the defendant/respondent was dismissed. it is against the dismissal of the suit part the plaintiff appellant fought the battle before the supreme court and in rejecting the said appeal the supreme court observed:the plaintiff appellant must succeed or fail on his own case and cannot take advantage of weakness in the defendant/ respondent's case to get a decree.28. after having considered the facts and the ratio of the above supreme court decision, i do not think i need to deal with that authority as the above decision can by no stretch of imagination again be said to have any application to the facts of this case at all. the citing of this decision makes only one thing clear that the appellant invoked the appellate jurisdiction of this high court with an extremely weak case or perhaps with no case at all.29. before i deal with the submissions made on behalf of the respondents herein, i must mention that the learned counsel for the appellant also tried to raise a dispute regarding the description of the structure in question which has been and is still under the occupation of the appellant but i do not think that the dispute has any factual basis whatsoever having regard to the facts of the case and the evidence adduced by the parties in support of their respective stands in the suit, namely in the plaint and the written statement.30. the other case, namely the decision in balwant singh and anr. v. daulat singh and ors, of the supreme court reported in : air1997sc2719 does not have, in my opinion, any application at all and as such it is not necessary to specifically deal with the said decision in deciding this appeal on merits.31. the learned counsel on behalf of the respondents in support of his submissions in court also submitted a short note of arguments on behalf of the respondents in which he supported the judgment of the learned trial judge in decreeing the suit in favour of the respondents herein.32. the learned counsel on behalf of the respondents, inter alia, argued that since the structure in question, which is still under the occupation of the appellant herein, is a movable property, the registration of the sale deed of the said structure was not a must for the purpose of its admission in evidence. the learned counsel, on behalf of the respondents put much emphasis that the structure in question was rightly regarded as 'kutcha' by the learned judge and in holding that the structure in question was a 'kutcha structure',the learned judge correctly accepted the evidence adduced by the respondents in support thereof. he also pointed out that in the evidence adduced by the witnesses on behalf of the respondents, it was proved that the suit property, which is a room, 'is made of fin on all sides including the roof thereof and that evidence had not been even questioned in cross-examination by the appellant herein. on the above basis the contention of the appellant that since the sale deed in question was not a registered document the same could not be admissible in evidence was countered by the learned advocate on behalf of the respondents.33. the learned counsel on behalf of the respondents, needless to mention, relied on the documents including the sale deed, which were marked as exhibits, and the said documents as i have mentioned hereinabove in this judgment and said, made the case of the original plaintiff in the suit, in fact, 'a full-proof case and the defendant, namely the appellant herein failed miserably to set up any defence far from any convincing or legally acceptable defence in his favour.34. in support of his contention that the status of tenancy in favour of the original plaintiff and now the present respondents herein was and is that of a thika tenancy, the learned counsel on behalf of the respondents retied on the provisions of sub-section 8 of section 3 of calcutta thika tenancy (acquisition and regulation act 1981) wherein the definition of thika tenant is provided. for the sake of convenience the definition of a thika tenant in sub-section 8 of section 3 of the act is set out below:thika tenant' means any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes successors-in-interest of such person.35. the learned counsel also relied on a decision of this court in satyanarayan and ors. v. s.c. chunder, reported in 2001(3) chn page 641 for the proposition that in order to constitute a case of thika tenancy the structure on the land has to be a kutcha structure and in support of his submission relied on the following observations of the division bench in the satyanarayan's case (supra) at page 646 and 647 of the report:that even under the present law, a thika tenancy relates to kutcha structures primarily, has already been decided by a division bench of our court to which one of us was a party.'the question which automatically comes to one's mind is that if construction of any structure make one a thika tenant then there would be a duplication of the rent laws. a tenant would be protected, if he constructs or obtains a permanent structure on land, both by the thika tenancy laws and by the rent control legislation. however, this unwholesome anomaly has been avoided from the very beginning by means of judicial decisions whereby the words 'any structure' in the thika tenancy act have been consistently held to mean kutcha or temporary structure. there is the case of kshirodamoyee sen, reported at cwn 565, the case of monmatha nath mukherji reported at 63 cwn 824 and the case of jatadhari daw, reported at 1986(1) chn page 21. even in the case given by mr. sen, being that of p.d. murarka, reported at 79 cwn 852 there are indications in the division bench judgment delivered by m.m. dutta, j. (when his lordship was at calcutta) that- pucca structures are not the subject matter of thika tenancy and those can be got demolished by the landlord by compelling the thika tenant to demolish those. mr. sen however cited this case for trying to show that if pucca structures are built by a thika tenant or a tenant he might become a thika tenant. we find that this case only decides that subject to the right of the landlord to . have the pucca structures demolished, the building of pucca structures themselves would not rob a thika tenant of his status by reason of the building of such pucca structures alone. the case is not at all an authority for the proposition that a person can become a thika tenant if he builds a pucca structure as opposed to a kutcha one.36. the findings of the learned judge on the basis of the facts and the evidence on record that the tenancy in question in respect of the suit premises is a thika tenancy and the said tenancy was proved to be in favour of the original plaintiff - p.k. manna cannot, in my opinion, be questioned at all. the learned judge did not have any alternative but to reject the so-called defence as sought to be made out by the defendant/appellant as the appellant miserably failed to prove anything in support of his defence far from any acceptable defence in contesting the suit in question. i do not think that the judgment and the decree of the learned trial judge suffer from any vice or illegality of any kind at all. perhaps, the learned judge mentioned the wrong exhibit numbers in dealing with the documentary evidence adduced by the plaintiffs /respondents at the trial and apart from such trivial omission or accidental error, if at all, there is nothing wrong either in the judgment or in the decree.the present appeal, in my opinion, is wholly without merits and the same is dismissed and consequently the judgment and decree of the learned trial judge are affirmed.there will be no order as to costs.p.k. samanta, j.37. i agree.
Judgment:

Maharaj Sinha, J.

1. This is an appeal against the Judgment and decree of the learned Judge, 13th Bench of the City Civil Court, at Calcutta, dated 29th August, 2001 passed in title suit No. 1531 of 1989. The learned Judge alter the trial of the above suit held pat the plaintiffs in the said suit, namely the respondents herein, were legally entitled to get the decree for eviction against the defendant, namely the appellant herein from the suit premises and as such' decreed the suit in favour of the plaintiffs/respondents by directing the appellant to vacate the suit premises within a specified time failing which the plaintiffs/respondents were 'entitled to have the decree executed'.

2. The case of the original plaintiff, Prafulla Manna, since deceased, namely the late husband of the first respondent in this appeal and the father of the second, third, fourth, fifth and the sixth respondents herein, was that he became the owner of the holding No. B/162/1/H/32, Bipin Bihari Ganguly Street. Calcutta, as he, on 15th November. 1978, purchased the structure of the said premises consisting of three rooms, one kitchen with a common passage from one M/s. Friends Union Tailor Pvt. Lid. Bandhab Bastralaya.

3. According to the plaintiff the defendant, namely the appellant herein, Bhagaram Shaw was a man of one Sri Rathin Bose who was one of the directors of the said M/s. Friends Union Tailors Pvt. Ltd. Bandhav Bastralaya and with the permission of the said director he started residing in one of the said rooms (room No, 3) of the said premises.

4. Since the purchase of the said structure of the said premises the original plaintiff had been paying rent thereof to one Sri Janak Ranjan Chowdhury' 'who happened to be the 'landlord of the said structure and after coming into force of the Thika Tenancy Act' he started paying rent to the Government of West Bengal on a regular basis.

5. The above holding number was duly mutated in favour of the original plaintiff by the Calcutta Municipal Corporation also. Since the defendant/ appellant was in permissive occupation of the said room (room No. 3) at the time when the original plaintiff purchased the said structure, the defendant/appellant assured the original plaintiff that he would hand over the peaceful vaca it possession of the said room of the said premises as and when required by the plaintiff, namely the husband and the father of .he respondents herein.

6. Since the appellant was in permissive occupation at the time of purchase of the said structure, the original plaintiff also allowed him to be in permissive occupation of the said room (room No. 3) on the basis of the above' assurance. The original plaintiff on many occasions requested the appellant to vacate the room and hand over the vacant possession of the said room (room No. 3) but since the appellant did not vacate, the plaintiff on 20 February 1989 issued a notice requesting the appellant to 'deliver the peaceful and vacant possession' of the said room of the said premises after expiry of one month from the receipt of the notice and though the said notice was received by the defendant/appellant but he did not acate the room and as such the plaintiff had to file the above suit for obtaining vacant possession of the said room from the defendant/appellant.

7. The appellant contested the above suit an I in his written statements took the stand that he became a Thika tenant of a portion of the premises No. 162, Boubazar Street, subsequently known as Bipin Bihan Ganguly Street, Calcutta, and the owner of the structure standing at the said premises and consequently denied that the original plaintiff became the owner of the said structure by virtue of any purchase thereof. The defendant/appellant merely denied the purchase in the written statement, as according to the defendant/ appellant the original plaintiff did not disclose any payment showing that he purchased the said structure and the appellant called upon the original plaintiff to prove his alleged ownership of the structure in question. The appellant also took the stand in his written statement that he was never in, permissive occupation of the premises in question but 'he was holding one room measuring about 9' x 11' In the structure standing at premises No. 162. Bipin Bihari Ganguly Street, Calcutta as a monthly tenant under M/s. Friends Union Tailors Private Ltd., the owner of the structure in more than 25 years at a monthly rent of Rs. 25/- payable according to English calendar'.

8. It was also asserted by the appellant in his written statement that the above Company Friends Union Tailors Pvt. Ltd used to grant receipt to the appellant 'for such payment of rent' and he 'paid rent to the said Company upto 15 November 1978 on getting receipts'. He also took the stand that the room in his occupation did not bear any number and that he was in occupation/possession of the said room as a monthly tenant and the said tenancy was still continuing in the eye of law.

9. As aforesaid, the appellant denied that the original plaintiff purchased the structure at the premises in question or that the original plaintiff was paying rent regularly to the landlord of the said structure or to the Government of West Bengal as alleged by the original plaintiff. The appellant also denied the factum of mutation in favour of the original plaintiff by the Calcutta Municipal Corporation. The original plaintiff never approached the appellant nor he had shown any document to the appellant regarding the alleged purchase of the said structure at the premises in question and upon inquiry it was ascertained by the appellant that no document was executed by the said M/s. Friends Union Trailors Pvt. Ltd. in favour of the original plaintiff transferring its right of Thika tenancy and the ownership of the said structure in question. He also said that the records of the Calcutta Municipal Corporation were manipulated by the original plaintiff and at the same time said that mere mutation in favour of the original plaintiff by the Calcutta Municipal Corporation did not confer any right of ownership in favour of the original plaintiff. The appellant alto took the stand that he never recognized the original plaintiff as his landlord nor 'he attorned the tenancy in question to the original plaintiff.

10. Since the appellant was continuing in possession of the room in question as a monthly tenant the question of revocation of any alleged licence to occupy the room in question could not arise and that his monthly tenancy was never validly determined and that he was entitled to all protection against eviction under the provisions of the West Bengal Premises Tenancy Act 1956.

11. Although as much as seven issues were framed by the learned Trial Judge but having regard to the facts of the case and the respective stands of the parties, namely the original plaintiff and the defendant/appellant herein, in my opinion, the only principal issue that was sufficient to decide and determine the real controversy or controversies between the parties to the suit was whether the defendant/appellant was in permissive occupation or rather a licensee of the premises in question or he was a monthly tenant of the suit premises and in the language of the learned Trial Judge this issue was framed as follows:

Is the defendant a licensee or a monthly tenant in respect of room in suit?' The other issues such as whether the notice that was issued by the original plaintiff determining the alleged licence in favour of the appellant was a legal and valid one and binding upon him, or whether the alleged licence of the appellant was lawfully revoked and determined were, in my opinion, merely incidental and dependant on the determination of the above principal issue.

12. In support of the case made out in the plaint various documents were tendered in evidence such as the original sale deed executed in favour of the original plaintiff by the said M/s. Friends Union Tailors Pvt. Ltd. Bandhav Bastralaya, the rent receipts showing payment of rent by the original plaintiff firstly, in favour of the said Janak Ranjan Chowdhuy who happened to be 'the alleged landlord' of the said 'structure' and then payment of rent in favour of the Government of West Bengal after the introduction of Thika Tenancy Act, the municipal assessment book, municipal tax bills raised on the original plaintiff and the receipts of payment of municipal taxes, postal receipt of the notice sent by the original plaintiff etc.

13. Two of the sons of the original plaintiff, Prafulla Kr. Manna, namely Subrata Manna and Dilip Kr. Manna gave evidence in support of their case and they also tendered the above documents and proved the same. The documents tendered by the sons of the original plaintiff, namely the 4th and the 5th respondents herein, were marked as Exhibits. The said original sale deed in favour of the original plaintiff Prafulla Kr. Manna was marked as Exhibit-I. The above-mentioned rent receipts issued in favour of the original plaintiff - Prafulla Kr. Manna were marked as Exhibit-2. The above municipal assessment books were marked as Exhibit-3. The bills raised by the Calcutta Municipal Corporation on the original plaintiff were marked Exhibit-4. The receipts for payment of Municipal taxes were marked Exhibit-6. The other documents tendered by the sons of the original plaintiff such as Exhibit-7, Exhibit-8, Exhibit-8/1 and Exhibit-9, however, need not be mentioned in detail for the purpose of considering whether the respondents herein were able to prove the case pleaded by the original plaintiff, namely their late father - Prafulla Kr. Manna, to obtain the decree for eviction against the appellant herein.

14. After having considered the evidence of the two sons of the original plaintiff-Prafulla Kr. Manna who are the 4th and the 5th respondents herein and the documents tendered by them in support of the claim or claims in the suit, I am of the opinion that the learned Trial Judge was perfectly able to evaluate the evidence on behalf of the original plaintiff and correctly held that the original plaintiff, in fact, purchased the structure on the premises in question upon payment of consideration of Rs. 8,000/- and that the original plaintiff validly and legally paid rent as thika tenant and the thika tenancy in favour of the original plaintiff - Prafulla Kr. Manna was very much proved on the basis of the documents which were tendered in evidence in support of such tenancy.

15. The appellant on the other side, I find, apart from denying the case of the original plaintiff in his plaint did not even make any attempt to prove or substantiate stand taken by him in the written statement to any extent whatsoever. The appellant apart from raising some frivolous disputes regarding the descriptions of the room in his occupation and apart from asserting that he was a tenant of the room in question could not produce or was unable to produce a single document in support of his alleged tenancy, namely, either as thika tenant or a tenant under the Rent Restriction Act, namely the West Bengal Premises Tenancy Act. Not a single rent receipt was produced and the receipt which was produced was not proved as rent receipt and the same was kept as marked for identification.

16. In this regard the findings of the learned Trial Judge which I accept to be the correct findings on the basis of the proved facts are mentioned below:

'The defendant categorically has stated in his written statement that he was the tenant in the premises in question. To establish this he has filed one document marked 'X' for identification. This document has not been marked 'X' exhibited. So I cannot take into consideration in my judicial notice. Moreover the defendant has also filed one document i.e. Exhibit-A the copy of the register wherein I find that name and address of the owner is Prafulla Manna, the predecessor of the plaintiff but the name of the tenant is there but not the name of the defendant rather Bhavanath Shaw. So the documentary evidence in question there is nothing to show that the defendant is or was the tenant in the premises in question. The defendant alone says about his tenancy over the premises in question but no other corroborating evidence is there as regards tenancy of the defendant in the premises under the plaintiff or under the M/s. Friends Union Tailors Pvt. Ltd'.

17. It appears from the Judgment of the learned Trial Judge that the learned advocate on behalf of the defendant sought to make out a case that the structure on the land in question should be regarded as immovable property and since the conveyance executed in favour of the original plaintiff - Prafulla Kr. Manna by the said M/s. Friends Union Tailors Pvt. Ltd, Bandhav Bastralaya was not a registered document the same could not be accepted in evidence.

18. The learned Judge, in my opinion, rightly rejected such contention as the learned Judge found on facts, and, in my opinion, found quite correctly, that the structure in question, namely a room which was made only of tins, could not be regarded as immovable property and as such rightly rejected the contention on behalf of the defendant/ appellant.

19. After having discussed the evidence adduced by the parties, namely the above respondents and the appellant herein and the documents in support of the respective cases of the appellant and the respondents, the learned Judge, in my opinion, correctly formed the opinion that the appellant apart from asserting that he was a tenant in his written statement was unable to prove any semblance of any right or title in respect of the premises in question in his favour to any extent whatsoever.

20. The learned Judge again quite correctly found that the occupation and/or possession of the appellant could at best be regarded as permissive one and the learned Judge quite correctly held that no formal notice terminating and determining the permissive occupation of a licensee or a person who is permissive occupation of a premises was required to be served, though in the instant case, such a notice was, in fact, served, and the mere filing of the suit could be regarded as enough a notice for revocation of licence and in any event, since the defendant/appellant failed to establish his tenancy of any kind, either a thika tenant or a tenant under the Rent Restrictions Act or tenant under any provisions of any statute, he was not entitled to any previous notice before the institution of the suit for obtaining possession of the suit premises. There was no occasion, therefore, for the learned Judge to accept any part of the alleged defence as sought to be made out from the witness box by. the defendant/appellant and on the basis of his stand taken in his written statement.

21. The learned Counsel on behalf of the appellant, however, sought to argue that even in a case where a defendant is not in a possession to show his title to the property in question he can still ask the plaintiff to prove his title to the property and the plaintiff has a corresponding obligation to show that his title to the property or the document on the basis of which he claims that he has title to the property is a superior title to that of the defendant and in support of his above contention he relied on a decision in Venkatasubba v. Vigneswaradu, reported in AIR 28 Mad 840.

22. Indeed, in the above case the Division Bench of the Madras High Court in dealing with the provisions of the Evidence Act under Section 102 was pleased to observe that in a suit for ejectment, 'even though the defendant has no title, he can still put the plaintiff to the proof of his title and the plaintiff has still to show that the sale deed on which he relies as having given him a title superior to that of the defendant is a valid one'. I do not think there is any scope of raising doubt as to the above proposition of law. The above observations of the Division Bench of the Madras High Court were based on the provisions of Section 102 of the Evidence Act.

23. However, in the instant case, the sale deed, which was relied on by the original plaintiff in support of his claim or claims in the suit, had and has remained unquestioned. The sale deed, as I find and as was quite correctly found by the learned Trial Judge, is a valid document which was proved in evidence and against which document the appellant herein had or has not been able to raise any doubt as to its validity either by producing any evidence from the witness box or by any evidence on record. As a result, the decision in Venkatasubba (supra), of the Division Bench of Madras High Court cannot come to any aid to the case or defence which was sought to be made out by the learned Counsel on behalf of the appellant in the first place.

24. Needless to mention, the decision in the Venkatasubba's case was based on its own facts and the observations of the Division Bench (at page 845 of the report) make that position quite clear. As aforesaid, the appellant, in the instant case, has, in my opinion, not been able to prove anything in his favour apart from denying the case of the plaintiff in the first place.

25. The learned Counsel for the petitioner also relied on a decision of the Supreme Court in Suresh Chand v. Kundan and Anr. reported in (2001)10 SCC 221 in support of his contention that the structure on the land in question which had and has been in occupation of the appellant herein should be regarded as an immovable property and if it is treated to be an immovable property then the question of applying the provisions of Thika Tenancy Act really would not arise.

26. In the ease of Suresh Chand (supra), the Supreme Court was concerned with the question whether the trees standing on the land in question in that case were to be treated to be part of the land and whether the interest in the land would also include the trees standing thereon and in a case where the land owner sold his right, title and interest in the land who such sale would include the trees standing thereon in the absence of any express or implied agreement to the contrary. I am in little difficulty in appreciating as to how and in what way the above case can be said to have any application to the facts of the present case at all. In my opinion, therefore, the decision of the Supreme Court in Suresh Chand's case need not be considered further for my present purpose.

27. The Supreme Court in the case of Punjab Urban Planning and Development Authority v. Shiv Saraswati Iron and Steel Re-Rolling Mills reported in : AIR1998SC2352 was dealing with a case where the plaintiff in the suit sought for specific performance of the contract, a contract for re-rolling of MS bars out of rails and blooms to be supplied by the plaintiff, namely the appellant before the Supreme Court to the respondent mill. The suit of the plaintiff/appellant for specific performance was partly decreed and the counter-claim of the defendant/respondent was dismissed. It is against the dismissal of the suit part the plaintiff appellant fought the battle before the Supreme Court and in rejecting the said appeal the Supreme Court observed:

The plaintiff appellant must succeed or fail on his own case and cannot take advantage of weakness in the defendant/ respondent's case to get a decree.

28. After having considered the facts and the ratio of the above Supreme Court decision, I do not think I need to deal with that authority as the above decision can by no stretch of imagination again be said to have any application to the facts of this case at all. The citing of this decision makes only one thing clear that the appellant invoked the appellate jurisdiction of this High Court with an extremely weak case or perhaps with no case at all.

29. Before I deal with the submissions made on behalf of the respondents herein, I must mention that the learned Counsel for the appellant also tried to raise a dispute regarding the description of the structure in question which has been and is still under the occupation of the appellant but I do not think that the dispute has any factual basis whatsoever having regard to the facts of the case and the evidence adduced by the parties in support of their respective stands in the suit, namely in the plaint and the written statement.

30. The other case, namely the decision in Balwant Singh and Anr. v. Daulat Singh and Ors, of the Supreme Court reported in : AIR1997SC2719 does not have, in my opinion, any application at all and as such it is not necessary to specifically deal with the said decision in deciding this appeal on merits.

31. The learned Counsel on behalf of the respondents in support of his submissions in Court also submitted a short note of arguments on behalf of the respondents in which he supported the Judgment of the learned Trial Judge in decreeing the suit in favour of the respondents herein.

32. The learned Counsel on behalf of the respondents, inter alia, argued that since the structure in question, which is still under the occupation of the appellant herein, is a movable property, the registration of the sale deed of the said structure was not a must for the purpose of its admission in evidence. The learned Counsel, on behalf of the respondents put much emphasis that the structure in question was rightly regarded as 'Kutcha' by the learned Judge and in holding that the structure in question was a 'Kutcha structure',

the learned Judge correctly accepted the evidence adduced by the respondents in support thereof. He also pointed out that in the evidence adduced by the witnesses on behalf of the respondents, it was proved that the suit property, which is a room, 'is made of fin on all sides including the roof thereof and that evidence had not been even questioned in cross-examination by the appellant herein. On the above basis the contention of the appellant that since the sale deed in question was not a registered document the same could not be admissible in evidence was countered by the learned Advocate on behalf of the respondents.

33. The learned Counsel on behalf of the respondents, needless to mention, relied on the documents including the sale deed, which were marked as Exhibits, and the said documents as I have mentioned hereinabove in this Judgment and said, made the case of the original plaintiff in the suit, in fact, 'a full-proof case and the defendant, namely the appellant herein failed miserably to set up any defence far from any convincing or legally acceptable defence in his favour.

34. In support of his contention that the status of tenancy in favour of the original plaintiff and now the present respondents herein was and is that of a thika tenancy, the learned Counsel on behalf of the respondents retied on the provisions of Sub-section 8 of Section 3 of Calcutta Thika Tenancy (Acquisition and Regulation Act 1981) wherein the definition of thika tenant is provided. For the sake of convenience the definition of a thika tenant in Sub-section 8 of Section 3 of the Act is set out below:

Thika tenant' means any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes successors-in-interest of such person.

35. The learned Counsel also relied on a decision of this Court in Satyanarayan and Ors. v. S.C. Chunder, reported in 2001(3) CHN page 641 for the proposition that in order to constitute a case of thika tenancy the structure on the land has to be a kutcha structure and in support of his submission relied on the following observations of the Division Bench in the Satyanarayan's case (supra) at page 646 and 647 of the report:

That even under the present law, a thika tenancy relates to kutcha structures primarily, has already been decided by a Division Bench of our Court to which one of us was a party.

'The question which automatically comes to one's mind is that if construction of any structure make one a thika tenant then there would be a duplication of the rent laws. A tenant would be protected, if he constructs or obtains a permanent structure on land, both by the Thika Tenancy Laws and by the Rent Control Legislation. However, this unwholesome anomaly has been avoided from the very beginning by means of judicial decisions whereby the words 'any structure' in the Thika Tenancy Act have been consistently held to mean kutcha or temporary structure. There is the case of Kshirodamoyee Sen, reported at CWN 565, the case of Monmatha Nath Mukherji reported at 63 CWN 824 and the case of Jatadhari Daw, reported at 1986(1) CHN page 21. Even in the case given by Mr. Sen, being that of P.D. Murarka, reported at 79 CWN 852 there are indications in the Division Bench Judgment delivered by M.M. Dutta, J. (when his Lordship was at Calcutta) that- pucca structures are not the subject matter of thika tenancy and those can be got demolished by the landlord by compelling the thika tenant to demolish those. Mr. Sen however cited this case for trying to show that if pucca structures are built by a thika tenant or a tenant he might become a thika tenant. We find that this case only decides that subject to the right of the landlord to . have the pucca structures demolished, the building of pucca structures themselves would not rob a thika tenant of his status by reason of the building of such pucca structures alone. The case is not at all an authority for the proposition that a person can become a thika tenant if he builds a pucca structure as opposed to a kutcha one.

36. The findings of the learned Judge on the basis of the facts and the evidence on record that the tenancy in question in respect of the suit premises is a thika tenancy and the said tenancy was proved to be in favour of the original plaintiff - P.K. Manna cannot, in my opinion, be questioned at all. The learned Judge did not have any alternative but to reject the so-called defence as sought to be made out by the defendant/appellant as the appellant miserably failed to prove anything in support of his defence far from any acceptable defence in contesting the suit in question. I do not think that the Judgment and the decree of the learned Trial Judge suffer from any vice or illegality of any kind at all. Perhaps, the learned Judge mentioned the wrong exhibit numbers in dealing with the documentary evidence adduced by the plaintiffs /respondents at the trial and apart from such trivial omission or accidental error, if at all, there is nothing wrong either in the Judgment or in the decree.

The present appeal, in my opinion, is wholly without merits and the same is dismissed and consequently the Judgment and decree of the learned Trial Judge are affirmed.

There will be no order as to costs.

P.K. Samanta, J.

37. I agree.