Sunil Kumar Ghose. Vs. Smt. Sunita Roja and ors. Being Legal Heirs and Representatives of Amar Chand @ Chandan Roja Since Deceased - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] the appellant- university on march 1, 1996 issued an advertisement for filling up the posts of deputy registrar and assistant registrar by direct recruitment. the minimum qualification prescribed for appointment as assistant registrar was as under:-respondent no.1, who was an employee of the university, made applications both for the posts of deputy registrar and assistant registrar. respondents 4 and 5 were placed in the select list at ranks iv and v respectively. on the basis of the select list, prepared by the selection committee, respondent nos. 4 and 5 were appointed as assistant registrars. 5. the writ petition was opposed by the university. it was, accordingly, submitted that respondent no.1 was ineligible for appointment to the post of assistant.....1. this second appeal is directed against judgment and decree dated 22.04.2002 passed by learned judge sixth bench, city civil court at calcutta in title appeal no.46 of 2001. by the impugned judgment, the judgment and decree of ejectment dated 28.02.2001 passed by learned judge presidency small causes court at calcutta in ejectment suit no.39 of 2000 was set aside. 2. being aggrieved with the aforesaid judgment and decree passed by learned lower appellate court this second appeal has been preferred. 3. the present appellant /plaintiff filed said suit alleging that he purchased the suit house including the suit property by a registered deed of conveyance dated 23 rd february, 1996 and that one kanailal roja, husband of defendant no.1 and father of defendant no.2, was a monthly tenant in.....

Judgment:
1. This Second Appeal is directed against judgment and decree dated 22.04.2002 passed by learned Judge Sixth Bench, City Civil Court at Calcutta in Title Appeal No.46 of 2001. By the impugned judgment, the judgment and decree of Ejectment dated 28.02.2001 passed by learned Judge Presidency Small Causes Court at Calcutta in Ejectment Suit No.39 of 2000 was set aside.

2. Being aggrieved with the aforesaid judgment and decree passed by learned Lower Appellate Court this Second Appeal has been preferred.

3. The present appellant /plaintiff filed said suit alleging that he purchased the suit house including the suit property by a registered deed of conveyance dated 23 rd February, 1996 and that one Kanailal Roja, husband of defendant No.1 and father of defendant No.2, was a monthly tenant in respect of the suit premises and that after his death both the defendants became tenants in respect of the suit premises. The defendants defaulted in payment of rent, caused nuisance and annoyance and sublet the suit premises and parted with possession thereof with one Asoke Roja and his family members without the knowledge and written consent of the landlord. The suit premises was also reasonably required by the landlord for his own use and occupation. Accordingly, the suit for ejectment was filed against both the defendants after terminating their tenancy through a notice to quit.

4. The respondents/defendants contested said suit by filing written statement denying material allegations of the same.

5. After contested hearing learned Trial Court passed a decree of ejectment only on the ground of subletting to Asoke Roja and his family members. He permitted the respondent /defendant/tenants to avail the benefit of protection against eviction on the ground of default under Section 17(4) of the West Bengal Premises Tenancy Act, 1956. He also observed that appellant /plaintiff/landlord failed to make out other grounds of ejectment as averred in his plaint.

6. Against said judgment and decree of ejectment present respondents/defendants preferred the appeal being Title Appeal No.46 of 2001 which was allowed after contested hearing.

7. At the time of admission of second appeal the following substantial question of law was formulated by the Division Bench.

Whether the Court of Appeal erred in not holding that by filing the voter list being Ext.10, the plaintiff discharged his onus of proving subletting and the same was shifted upon the defendants to prove that Asoke Roja is not residing in the suit premises and that the voter list being Ext.10 is not correct and that Asoke Roja accepted the service of summon on behalf of defendants.

8. Mr. R. N. Dutt, learned advocate for the appellant, has submitted that during trial certified copies of voter lists ((Ext.9 and 10) were filed to show that defendants/tenants were residing at premises No.24 Ramnath Kabiraj Lane, Kolkata 12 and that Asoke Roja is residing at the suit premises i.e., premises No.13 Jalia Para Lane, Kolkata-12.

9. According to him those documents were exhibited without objection being public documents and learned Trial Court rightly gave due weightage to them, but unfortunately learned Lower Appellate Court observed that certified copy of voters list was not admissible in evidence under Section 35 of the Indian Evidence Act.

10. In this connection he has referred a case law reported in AIR 1972 Orissa Page 158 Full Bench (Kirtan Sahu versus Thakur Sahu and others) wherein it was observed by the Honble Court that electoral rolls prepared under the Representation of the People Act was a public record within Section 35 and a public document within Section 74 (1) (iii) of the Evidence Act and is admissible in evidence as such and it is not necessary to call in evidence the author thereof or a person supplying the information to prove the roll, as its genuineness will be presumed under this Section (Section 81 of the Evidence Act) when it is produced before a Court of law.

11. He has further referred the case law reported in AIR 1981 SC page 361 (Harpal Singh v. State of Himachal Pradesh) and AIR 2008 Karnataka 107 (C. Thimmappa v. Mariyappa) to impress upon this Court that entries made by officials in public documents in discharge of their official duties are admissible under Section 35 of the Indian Evidence Act and that examination of the official is not necessary to prove the same.

12. Mr. Banerjee, learned advocate for the respondent/defendant/tenants, has submitted that save and except these voters lists there was no other document to show possession of the suit premises by Asoke Roja and his family members or residing of defendant/tenants in 24 Ramnath Kabiraj Lane giving exclusive possession of suit premises to Asoke Roja and his family members.

13. He has further submitted that the voters list cannot pinpoint the place of residence of the persons named in the voters list, in the particular portion of the building. As suit premises situated in a three storied building having three rooms in each floor and the suit premises is situated in the ground floor comprising two bed rooms, it cannot be said from said voters list that Asoke Roja and his family members were occupying suit premises.

14. It came out from the evidence on record that first floor and second floor are fully occupied by some other tenants and that another room of the ground floor is also under occupation of another tenant which is admitted by both the parties. Either in the Trial Court or in the Lower Appellate Court, this plea was also not taken that Asoke Roja and his family members might have resided in other parts of the building wherein suit premises is situated. At this stage aforesaid submission has no leg to stand upon.

15. Mr. Banerjee, learned advocate for the respondent/defendant/tenants, has further submitted that those voters lists were of 1975 and not current one and hence no reliance can be placed upon them.

16. Mr. R. N. Dutt, learned advocate for the appellant, in this connection has referred to Section 21 of the Representation of the People Act, 1950 which relates to preparation and revision of electoral rolls and has submitted that the electoral roll is expected to be revised before each election but if there is no revision still the validity or continued operation of said electoral roll shall not be affected. In this connection he has further submitted that in 2001 appellant applied for the certified copy of the electoral roll and the copy of electoral roll of 1975 was supplied to prima facie show that same situation was continuing.

17. Mr. Banerjee, learned advocate for respondent, has submitted that in order to establish alleged sub-tenancy under Section 13(1) (a) of the West Bengal Premises Tenancy Act, 1956 the landlord has to establish that the alleged sub-tenant was in exclusive possession of the entire or a part of the tenanted portion and that tenant parted with possession against some consideration. In this connection, he has referred case laws reported in (2000) 7 Supreme Court Cases 522 (Shama Prashant Raje v. Ganpatrao and others) and 1997 (2) CLJ page 264 (Durga Charan Saha v. Sm. Baradamani Dasi). He has further submitted that burden of proof of subletting was upon landlord and that in the case in hand appellant /plaintiff /landlord has miserably failed to discharge said burden and that learned Lower Appellate Court rightly set aside the order of eviction on the ground of alleged subletting.

18. It is true that the burden of proving of subletting is on the landlord, but the evidential burden which rests initially upon a party shifts according to the way of the evidence adduced by the parties during the trial. So, the onus shifts on the tenant in certain circumstances after the landlords prove the initial onus.

19. In the case in hand, the appellant/landlord filed certified copy of voters list to prima facie show that Asoke Roja and his family members were shown as residents of the suit house and that respondents/tenants were shown as residents of another premises. During evidence it also came out that Asoke Roja was cousin brother of defendant No.2. It also came out that other portions of the suit building were in occupation of other tenants. There is no case that Asoke Roja and his family members were residing in other parts of said building. In view of said certified copies of voters lists (Ext. 9 and Ext.10) the onus shifted upon defendants/tenants to show in what capacity Asoke Roja and his family members were residing in the suit premises. The respondent/defendant/tenants failed to produce Asoke Roja or any of his family members to show that they were residing elsewhere. No document whatsoever was also filed to show that Asoke Roja and his family members who were close relatives of the defendant /tenants were residing elsewhere.

20. In the case in hand, the notices meant for defendant/tenants and sent with the address of the suit premises, were received by Asoke Roja to corroborate the claim of appellant/landlord that Asoke Roja was in occupation of suit premises. During evidence it also came out that the wife and other members of the defendant No.2 were residing in 24 Ramnath Kabiraj Lane. Defendants tried to take a plea that they sometimes reside in suit premises and sometimes reside in 24 Ramnath Kabiraj Lane which was not accepted to be believable by the learned Trial Court.

21. In this connection it is pertinent to note that as subletting usually takes place without the consent of the landlord, he is generally a stranger to the agreement of subletting between his tenant and sub-lessee and it is difficult for him to produce direct evidence regarding passing of consideration for said subletting. To prove subletting the landlord has no alternative but to rely on attending circumstances.

22. Once it is proved that there has been transfer of possession of the tenanted premises without the permission of the landlord, the only person who can account for it is the lessee and his transferee. On the proof of transfer of possession of the tenanted possession, the onus shifts upon the tenant to make out that the transfer of possession cannot be attributed to subletting or assigning. In such a case it is for the tenant to prove under what arrangement he transferred the possession to another person. I have already stated that in the case in hand the appellant /landlord produced and proved certified copy of voters list to show at least prima facie, residing of respondent/tenants in a premises other than suit premises and residing of alleged subtenant Asoke Roja and his family members in the suit building. It came out from evidence on record that other portions of the suit building were in occupation of different tenants and that there was no scope of accommodation of Asoke Roja and his family members in said other portions of the suit building. Asoke Roja and his family members were found to be close relation of defendants/tenants. Asoke Roja accepted the notice of the case on behalf of the defendants by putting his signature when said notices were sent to the suit premises. Neither Asoke Roja nor any of his family members came forward not any document was produced to show that they were residing in any place other than suit premises.

23. Considering all these aspects, I am of the opinion that learned Lower Appellate Court failed to take note of the evidential value of the voter lists being Ext.9 and Ext.10 in their proper perspective and also failed to give proper weightage to the fact of receipt of notice meant for defendant/tenants and addressed to the suit premises, by Asoke Roja. Accordingly, I am of the opinion that appellant/landlord was able to establish the ground of subletting and was entitled to get a decree of eviction on that score.

24. After closing of argument but before pronouncing of judgment it was reported that the sole respondent Amar Chand alias Chandan Roja has since died leaving behind Sunita Roja and Ors. as his legal heirs and representatives. In terms of Order 22 Rule 6 of the Civil Procedure Code there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, and the judgment may in such case be pronounced notwithstanding the death and said judgment shall have the same force and effect as if it had been pronounced before the death took place. However, the appellants wanted to bring on record the names of said legal heirs and representatives of deceased respondent Amar Chand alias Chandan Roja through an application dated 2 nd of December, 2010 being C. A. N. No.9981 of 2010. After hearing of said application in presence of both sides the names of those legal heirs and representatives of sole respondent Amar Chand alias Chandan Roja since deceased were brought on record, though, as per statute it was not necessary.

25. As a result, the appeal succeeds. The impugned judgment and decree dated 22.04.2002 passed by learned Judge, Sixth Bench City Civil Court at Calcutta in Title Appeal No.46 of 2001 is hereby set aside by restoring the judgment and decree of eviction dated 28.02.2001 passed by learned Judge, Presidency Small Causes Court at Calcutta in Ejectment Suit No.39 of 2000.

26. Let a copy of this judgment be forwarded to learned Trial Court along with Lower Court records for information and necessary action.

27. Urgent xerox certified copy of this judgment be supplied to learned Counsel of the party / parties, if applied for.