BUDDHADEB HALDER vs CHANDRA NATH CHANDRA - 2024-02-13

O R D E R

Delay condoned.

Leave granted.

In our opinion, the impugned judgment is unsustainable because it incorrectly records that pursuant to execution of the partition deed dated 24.09.1990, the respondent - Chandra Nath Chandra and Biswanath Chandra (maternal uncle of the appellant – Buddhadeb Halder) had become joint tenants in the property located at premises No. 123/1 A & B, Bipin Behari Ganguly Street, P.S.

Muchipara, Kolkata, West Bengal.

The impugned judgment passed by the High Court records that the partition deed had specifically demarcated the tenancy rights of the respondent - Chandra Nath Chandra as Eastern Side being Lot ‘A’ of the main shop room located at the front road side in the ground floor, and the tenancy rights of Biswanath Chandra was in the back portion of godown, which was Lot ‘C’. Thus there was division of tenancy viz. the area.

In view of the aforesaid position, on 16.12.2011, the respondent - Chandra Nath Chandra would not have alone inherited by survivorship being the joint tenant, the tenancy rights of Biswanath Chandra in the back portion of the godown being Lot 'C'.

Of course, the respondent - Chandra Nath Chandra could have inherited the tenancy rights with other inheritors in terms of Section 8 of the Hindu Succession Act, 19561. Brother and sister are Class II heirs under Clause II.(1) of Schedule read with Section 8 of the 1956 Act.

The appellant – Buddhadeb Halder is the son of the sister of Biswanath Chandra. The mother of the appellant – Buddhadeb Halder would be a co-tenant along with the brothers and the sisters of Biswanath Chandra including the respondent - Chandra Nath Chandra.

Learned Senior Advocate appearing for the respondent has, however, relied upon Section 2(g) of the West Bengal Premises Tenancy Act, 19972, which defines the term/expression “tenant” for the purpose of the said Act. It is stated that the tenancy in question being a protected tenancy is covered by the 1997 Act. We do not understand how the respondent – Chandra Nath Chandra can rely upon Section 2(g) of the 1997 Act and seek eviction of the appellant – Buddhadeb Halder through the civil court. The other inheritors, who are co-tenants, were not impleaded as parties to the civil suit. One of the inheritors is the mother of the appellant. Plea and contention of surrender of tenancy by other co- tenants is raised, but evidence and material in this regard is scanty and not established. 1 For short, “the 1956 Act” 2 For short, “the 1997 Act”

We need not examine as to whether or not appellant – Buddhadeb Halder is a tenant in terms of Section 2(g) of the 1997 Act.

Recording the aforesaid, the impugned judgment dated 05.02.2020 passed in F.A.T. no. 418/2016 and order dated 26.03.2021 in RVW no. 47/2020 are set aside and the judgment and decree of the civil court, dated 04.07.2016 passed in Title Suit/Case no. 1314/2012, is restored. The said suit will be treated as dismissed. We however make no comments on any right of the respondent– Chandra Nath Chandra viz. a co-tenant against the appellant– Buddhadeb Halder and/or other inheritors.

Recording the aforesaid, the appeals are allowed in the above terms.

Pending application(s), if any, shall stand disposed of.

..................J.

(SANJIV KHANNA)

..................J.

(DIPANKAR DATTA)

NEW DELHI;

FEBRUARY 13, 2024.

ITEM NO.9 COURT NO.2 SECTION XVI S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 21426/2022

(Arising out of impugned final judgment and order dated 26-03-2021 in RVW No. 47/2020 05-02-2020 in FAT No. 418/2016 passed by the High Court at Calcutta)

BUDDHADEB HALDER Petitioner(s)

VERSUS CHANDRA NATH CHANDRA Respondent(s)

(IA No. 118760/2022 - CONDONATION OF DELAY IN FILING IA No. 118762/2022 - CONDONATION OF DELAY IN REFILING / CURING THE DEFECTS IA No. 144862/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 56905/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 48624/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

Date : 13-02-2024 These matters were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE DIPANKAR DATTA For Petitioner(s) Mr. Tanmoy Mukherjee, Adv.

Mr. Anindo Mukherjee, Adv.

Mr. Rameshwar Prasad Goyal, AOR For Respondent(s) Mr. Rauf Rahim, Sr. Adv.

Mr. Ali Asghar Rahim, Adv.

Mr. Shekhar Kumar, AOR UPON hearing the counsel, the Court made the following

O R D E R

Delay condoned.

Leave granted.

The appeals are allowed in terms of the signed order.

Pending application(s), if any, shall stand disposed of.

(BABITA PANDEY) (R.S. NARAYANAN)

COURT MASTER (SH) ASSISTANT REGISTRAR

(Signed order is placed on the file)