Santanu Chaudhuri Vs. Subir Ghosh - Court Judgment

Excerpt:
- bhaskar bhattacharya, j.1. this first appeal is at the instance of a plaintiff in a suit for recovery of possession and is directed against the judgment and decree dated 21st december, 1998 passed by the learned civil judge, senior division, 9th court, alipore in title suit no.42 of 1996 thereby dismissing the said suit.2. the appellant herein filed the aforesaid suit for recovery of possession of the suit premises from the respondent herein by describing him as a trespasser and also for mesne profit and the case made out by the appellant may be summed up thus:(a) the plaintiff was appointed administrator of the estate left by his father by virtue of an order passed by the high court and in the capacity of such administrator, he inducted one kali saha as a licensee in the suit property for the purpose of use of the portion thereof for ceremonial occasions. as charge for induction as such licensee, the said shri saha agreed to pay rs. 1,500/- a day to the plaintiff. such authority given by the plaintiff was on condition that the licence so granted was liable to be revoked in case the property was required to be developed for construction of a new building. accordingly, shri saha took possession of the 7500 sq.ft. on the first floor of the premises.(b) the respondent wanted to take five bed rooms, four latrines, terrace, kitchen, store room and one hall room on the first floor and two garages on the ground floor and the right of the user of the roof and two rooms of the premises no. 66, puma das road which is the subject-matter of the suit and approached the plaintiff for the aforesaid purpose. negotiations started but the terms and conditions of the transfer of the suit property were not and could not be finalised in view of order of status quo passed by the learned munsif, 3rd court, alipore in title suit no.232 of 1991at the instance of the plaintiffs brother restraining the plaintiff from letting out the suit property.(c) the defendant initially gave rs. 1,00,000/- to the plaintiff as advance in the course of negotiations and discussions and thereafter paid a further sum of rs.25,000/-. subsequently, when the plaintiff found that he would not be able to have the order of status quo vacated in the suit of his brother, he discussed the matter with the defendant and it was agreed that the entire amount of advance given by the defendant to the plaintiff would be returned back to him.(d) the first of such refund was made by the plaintiff by sending a cheque for rs.25,000/- and the said cheque was presented for encashment of 28th march, 1992 but as the balance fell short, the cheque could not be encashed. the said cheque was again presented to the said bank but the plaintiff instructed the bank not to honour the cheque as the claim of the plaintiff of mense profit and damages were required to be adjusted against the advance.(e) taking advantage of retention of rs.1,25,000/-, the defendant wrongfully misrepresented the same to be a tenancy agreement and forcibly entered into the suit property by breaking open the padlock put up by shri kali saha.(f) to retain the unauthorised and wrongful possession of the suit property, the defendant filed title suit no. 111 of 1992 before the 3rd court of the munsif at alipore against the plaintiff for a decree for declaration that the defendant was a tenant under the plaintiff in respect of the suit property at a rental of rs. 2,000/- which should be adjusted towards advance of rs. 1,25,000/- and for permanent injunction. the said suit was heard ex parte and by a judgment and decree dated 21st august, 1995, the learned munsif was pleased to decree the suit in part restraining the plaintiff from evicting the defendant from the suit property without due process of law but the prayer for declaration of tenancy right in favour of the defendant was refused.(g) the plaintiff has accordingly filed the present suit for recovery of possession by treating him as trespasser and for mesne profit.3. the defendant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the plaint and the defence of the respondent may be summarised thus:(1) the suit was not maintainable as a previous suit filed by the plaintiff being title suit no.242 of 1992 filed in the 3rd court of munsif, alipore, was dismissed for default.(2) the defendant is a tenant in respect of the property on the basis of induction by the plaintiff after acceptance of rs. 1,25,000/- with a stipulation that the rent should be adjusted towards the said advance.(3) the suit is barred by limitation and at the same time, the suit should fail for want a valid notice under section 13(6) of the west bengal premises tenancy act.4. at the time of hearing of the aforesaid suit the plaintiff and one anirudha chowdhury deposed on behalf of the plaintiff while the defendant alone gave evidence in opposing the relief claimed in the suit.5. the learned trial judge, as indicated above, by the judgment and decree dated 21st december, 1998 dismissed the suit thereby holding that the respondent acquired a tenancy right by virtue of agreement between the parties coupled with the payment of advance as mentioned above.6. being dissatisfied, the plaintiff has come up with the present appeal.7. mr. mitra, the learned senior advocate appearing on behalf of the appellant, has raised a pure question of law in support of this appeal.8. according to mr.mitra, the defendant-respondent himself having filed a suit being title suit no.lll of 1992 for declaration of his tenancy right in respect of the suit property and for permanent injunction but in the said suit the prayer for declaration of tenancy right having been specifically refused, the issue whether the defendant is a tenant under the plaintiff is concluded by the said decision and the said decision is not only res judicata in the present proceedings but at the same time, the defendant is also estopped from disputing the correctness of the said decision as he had not challenged the refusal of his prayer for declaration in the earlier suit by filing any appeal against such decree. mr. mitra, thus, contends that the learned trial judge could not reopen the said question on the basis of evidence adduced by defendant and the documents produced by him which were also considered in the earlier suit. mr. mitra, thus, submits that on the basis of decision given in the earlier suit, the present suit should be decreed with a finding that the defendant is a trespasser in respect of the property.9. mr. dutt, the learned senior advocate appearing on behalf of the defendant-respondent, seriously disputed the aforesaid contention of mr. mitra.10. mr. dutt, contended that in the earlier suit filed by his client, the prayer for declaration of tenancy right was turned down as sufficient evidence could not be produced by his client and in such a case, there is no bar in reconsidering the said question in this suit on the basis of further evidence in addition to those given in the earlier suit and the previous decision cannot stand in the way of the defendant as res judicata. in support of such contention, mr. dutt, placed strong reliance upon the following decisions :1. howrah trading company (p) ltd. v. pramila jalan, reported in 1994(2) clj 278;2. trustees of jam-jodhpur stanak vast vardhaman vanik jain sangh and ors. v. thambaklal jivaram and ors., reported in air 1987 guj 167.11. after making such submission and citing the above decisions, mr. dutt prayed for adjournment and thereafter, on the next date of hearing, mr. sanyal, the learned advocate appeared on behalf of the respondent informing the court that mr.dutt retired from the case on his personal ground.12. mr. sanyal has, however, taken a new plea on behalf of the respondent. mr.sanyal contends that even if it is assumed for the sake of argument that the finding that the defendant-respondent was not a tenant in the earlier suit was res judicata in the present proceedings, his client is entitled to retain possession of the property which was protected by the earlier decree by advancing the plea of the doctrine of part performance. according to mr.sanyal, his client was put into possession by virtue of an agreement of tenancy and his client is also willing to perform his part of agreement as evinced from the written document and as such, he is entitled to maintain his possession, even if he is not held to be a tenant in respect of the property. mr. sanyal, thus, prayed for dismissal of the appeal. in support of such contention mr.sanyal placed before this court the following decisions:1. sardar govindrao mahadik and anr. v. devi sahai and ors., reported in : [1982]2scr186 ;2. manjural haque v. mewajan bibi and ors., reported in : air1956cal350 ;3. bamchandra annappa v. subraya timmaya, reported in : air1951bom127 ;4. jonnada sayi and ors. v. jonnada subbanna and ors., reported in air 1946 madras 310;5. shyam sundar lal and anr. v. din shah and ors., reported in : air1937all10 ;6. patel natwarlal rapji v. shri kondh group kheti vishayak and anr., reported in : air1996sc1088 ;7. chandra nath mukherjee v. chulai pashi and anr., reported in : air1960cal40 ;8. maneklal mansukhbhai v. humus jamshedji ginwalla & sons, reported in : [1950]1scr75 .13. therefore, the first question that falls for determination in this appeal is whether the disposal of the earlier suit filed by the respondent refusing the prayer of declaration of tenancy right in the suit property is res judicata in the present suit.14. after hearing the learned counsel for the parties and after going through the materials on record, we find that in the past, the respondent filed a suit for declaration of his tenancy right by relying upon the self-same induction and the identical plea of acceptance of rs. 1,25,000/- at the instance of the plaintiff. notwithstanding production of documents showing acceptance of such amount, the learned trial judge in the said suit found that the plaintiff could not prove tenancy in respect of the property and thus, refused the prayer for declaration. the learned trial judge, however, restrained the present appellant from interfering with the possession of the property except by due process of law.15. it is now settled law that even if an ex parte decision is given in the earlier suit thereby deciding a particular dispute in one way, that decision is res' judicata in subsequent suit if the issue involved in the second suit is substantially the same. it was the defendant who earlier filed the suit for declaration of his tenancy right and the learned trial judge did not grant such relief and the present respondent was satisfied with such part decree. such being the position, the previous decision, refusing to recognize the defendant herein as a tenant, should be held to be barred by the principle of res judicata and the learned trial judge erred in law in arriving at a different conclusion on the basis of evidence adduced by the defendant before the trial court.16. we, thus, find that the learned trial judge erred in law in holding that the defendant was a tenant in respect of the property by virtue of the alleged induction which was also the issue in the earlier suit filed by the defendant himself. we must not confuse the word 'issue' appearing in section 11 of the code of civil procedure with that appearing in order 14 thereof and thus, even though in the earlier suit, the decree was passed ex parte and that no issue in terms of order 14 of the code was framed, the said decision would be res judicata because it was the specific case of the defendant herein who was plaintiff in the earlier suit that he acquired tenancy right in the suit property under the appellant herein by the self-same transaction and such claim was turned down.17. the next question is whether the defendant is entitled to retain possession by applying the doctrine of part performance in the present suit.18. in order to appreciate the aforesaid question, the provisions of section 53a of the transfer of property act as it stood at the time of filing of the suit are quoted hereunder:53a. part performance.--where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transfer has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 19. in this case, it is not the defence of the defendant that there was an agreement to create tenancy and pursuant to such agreement he was put into possession but the plaintiff is not completing the transaction; on the other hand, it is the definite case of the defendant that the plaintiff inducted him as tenant in the property and that is why he prayed for declaration of his tenancy right in the earlier suit and that is also his defence in this suit. it is his specific defence that he is a tenant and in the absence of a valid notice under section 13(6) of the west bengal premises tenancy act, the suit is not maintainable.20. in our view, the doctrine of part performance is applicable only in those transactions where the transactions are yet to be completed for non-registration of the document required under law or non-compliance of other mandatory formalities enjoined under the law. for the purpose of creation of a monthly tenancy in respect of a building, if the lessee is put in the possession of the leasehold property on settlement of amount of rent, that is sufficient and no further formality is required to be performed by the lessor as provided in section 107 of the transfer of property act. therefore, in this case, once the defendant has taken a plea of creation of tenancy in his favour and such plea has been turned down, he is not entitled to take the plea of part performance embodied in section 53a of the transfer of property, act when he has taken the plea of 'full performance' culminating in the alleged right of tenancy in his favour.21. we, thus, find that the defence taken by defendant that he is a tenant in respect of the property is not tenable in view of the earlier decision given in the suit filed by the defendant himself and at the same time, in the fact of the present case, the doctrine of part performance is also not available to the defendant.22. it appears from the judgment and decree passed by the learned trial judge that the other defence taken by the defendant that the present suit filed by the plaintiff is barred by the principle of res judicata in view of dismissal of the earlier suit filed by the plaintiff has gone against him. it is rightly pointed out by the learned trial judge that the previous suit filed by the plaintiff was not dismissed but the plaint was rejected for non-payment of sufficient court-fees and as such, rejection of the plaint cannot stand in the way of plaintiff in filing a fresh suit on the self-same cause of action.23. we now propose to deal with the decisions cited by mr.dutt and mr.sanyal.24. in the case of howrah trading company (p) ltd. (supra), a learned judge of this court was considering a pro interesse suo application. it appears from part 23 of the said judgment that an objection was raised pointing out that an identical application had been made earlier which had been disposed of by an order dated 17th august, 1981 by another learned judge and as such, the said application should be barred by the principle of res judicata. while dealing with such a question, the learned judge in paragraph 30 of the judgment observed that the principle of res judicata could be made applicable only if the issue was earlier finally decided. it was pointed out that in the earlier order dated 17th august, 1981, the learned judge on the basis of material before him,' specifically held that it was not possible to decide the said matter on the basis of affidavit. therefore, it was apparent that the second application could be decided on the basis of evidence produced by the parties when in the previous occasion the learned judge expressed his inability to decide the question finally on the basis of affidavit. in the case before us, in the previous suit filed by the respondent, the issue whether the respondent was a tenant was adjudicated in full and even by ex parte evidence, the respondent could not prove the same. therefore, the principle laid down in the case of howrah trading company (p) ltd. (supra), cannot have any application to the fact of the present case.25. in the case of trustees of jam-jodhpur sthanak vasi vardhaman vanik jain sangh and ors. (supra), it was held by a learned single judge of the gujarat high court that in order that principle of res judicata is applicable in a subsequent suit, it must be proved that the previous decision was of a court having jurisdiction to decide the same. in the said decision it was held that the previous suit was barred in view of sections 19, 20,21, 79 and 80 of the bombay public trusts act and as such, the said decision was that of a court having no jurisdiction. we fail to understand how the principle laid down in the said decision can have any application to the fact of the present case where admittedly the decision on the question of tenancy of the respondent was passed in the earlier suit by a court having jurisdiction to decide such question.26. in the case of sardar govindrao mahadik and anr.(supra), the supreme court reiterated the well-settled principles which are required to be proved for the application of the doctrine of part performance. according to the supreme court, in order to invoke the said doctrine, it must be shown that there was a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. if the aforesaid conditions are fulfilled, the apex court proceeded, before applying such doctrine, it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee continued in possession in part performance of the contract and had done some act in furtherance of the contract. there is no dispute with the aforesaid proposition of law. but the question before us in this case is whether the doctrine of part performance can be applicable to a case where the transferee claims that the transfer is complete and he has acquired title to the property by virtue of such transfer although such plea has been decided in an earlier suit between same parties. we, therefore, find that the said decision cannot help the respondent in any way.27. in the case of manjural haque (supra), a division bench of this court while considering the effect of an unregistered kobala came to the conclusion that such a document was invalid as a document of title in view of section 12 of the bengal tenancy act, but for the purpose of proving the requisite contract in writing under section 53a of the transfer of property act of the terms thereof, there should be no valid objection in law to its reception in evidence. we are at a loss to find how the said well-settled principles can have any application to the fact of the present case where for creation of a monthly tenancy in a house property there is no necessity of registration of the document.28. in the case of bamchandra annappa (supra), a division bench of bombay high court held that a lease is a transfer of immovable property within the meaning of section 53a of the transfer of property act. we are not disputing for a moment the aforesaid proposition of law, but the said decision cannot have any application to the fact of the present case where the respondent asserted in the written statement that the transaction was complete and that he became a tenant by virtue of such transaction.29. similar view has been taken in the case of jonnada sayi and ors. (supra), where a learned single judge of the madras high court reiterated the principle that section 53a applied to leases as a lease amounted to transfer of immovable property. we fail to find any relevancy of the said decision to the fact of the present case. the similar view was taken in the case of shyam sundar lal and anr.(supra), by a division bench of allahabad high court holding that section 53a is applicable to lease also. for the self-same reason, as given above, we find that the said decision is of no avail to the respondent.30. in the case of patel natwarlal rapji (supra) the supreme court was dealing with a case where a property was attached for recovery of debt. in that case, there was an agreement to sell the said land to a third party by subsequent contract and payment of part of consideration was made and possession was given to the third party. in such a situation, the supreme court held that the evidence adduced therein established that the agreement of sale was a sham contract and voluntarily made in order to frustrate the right of the decree holder to proceed against the property and right under section 53a could not be used for declaration that the said land was liable to attachment. we find that the said decision cannot have any application to the fact of the present case and the purpose of citing the said decision is not conceivable to us.31. in the case of chandra nath mukherjee (supra), a learned single judge of this court held that a registered kobala signed by lessee alone is invalid as a lease but possession under such lease and acceptance of rent by landlord constituted a lease by operation of law. the said decision, in our view, does not help the respondent who has taken a plea of part performance of contract.32. in the case of maneklal mansukhbhai (supra), the supreme court laid down as a proposition of law that where the terms of a lease agreed to be granted are contained in the correspondence of the government officials and the original not having been produced by the plaintiff in spite of notice to him under section 66 of the evidence act, the secondary evidence of the same by producing a certified copy of the record can be adduced in evidence in support of his defence of part performance. it was further held that by section 27a of the old specific relief act, the legislature had recognised that in cases of lease, the equity of part performance is an active equity and is sufficient to support an independent action by the plaintiff. it was further held that though a formal lease is not necessary to attract the application of section 53a. all that is required, the supreme court continued, is that an agreement in writing signed by transferee can be gathered from evidence. from the said decision it appears that government offered a permanent lease at the annual rental of rs. 290/- for the purpose of erecting a ginning factory. since for creating a permanent lease, registration of the instrument evidencing such transfer is necessary, the question of part performance was also relevant. but in the case before us, for the purpose of creating a monthly tenancy in respect of a building, mere putting the lessee in possession coupled with an agreement regarding the terms thereof is sufficient and as such, the doctrine of part performance cannot have any application, when the respondent had claimed that the appellant put him in to possession after accepting the advanced amount and fixing the terms of the tenancy notwithstanding the fact that such plea is concluded by the principles of res judicata. we, therefore, find that the said decision cannot help the respondents in any way.33. we, thus, find that the decisions, cited by mr. dutt and mr. sanyal, are of no avail to their client.34. we, accordingly, set aside the judgment and decree passed by the learned trial judge and pass a decree for eviction in favour of the plaintiff. the defendant is directed to vacate the suit property within two months from today. the plaintiff is also entitled to mesne profit and its quantum should be adjudicated in separate proceedings under order 20 rule 12 of the code. the appeal is, thus, allowed. in the facts and circumstances, there will be, however, no order as to costs. sadhan kumar gupta, j.i agree.