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High Court Of Calcutta
S. B. SINHA, BHASKAR BHATTACHARYA
TARAK NATH SHA - Appellant
Versus
BHUTORIA BROTHERS PVT.LTD. - Respondent
FIRST APPEAL 87 Of 1990
Decided On : 08/28/1997
LANDLORD TENANT - SURRENDER OF LEASE - FRESH TENANCY - EVIDENCE - CIRCUMSTANTIAL EVIDENCE - ADMISSION OF ADDITIONAL EVIDENCE - APPELLATE COURT'S POWER - SIGNATURE COMPARISON - LACUNA IN EVIDENCE.
Fact of the Case:
Tarak Nath Sha (appellant), the landlord of premises No. 3, Leonard Road, Calcutta, filed two appeals challenging the decrees passed by the trial court in two suits. In one suit, the appellant sought eviction of M/s. Bhutoria Brothers Pvt. Ltd. (the company) from the premises on the ground of expiry of lease. In the other suit, Manmal Bhutoria, a former Director of the company, claimed declaration of his tenancy rights in the premises and sought a permanent injunction against the appellant from denying his tenancy rights.
Finding of the Court:
The court held that the company had surrendered its lease in 1974 in accordance with the terms of the lease deed. The court also found that a fresh tenancy was entered into between the appellant and Manmal Bhutoria after the company's surrender of the lease. The court relied on various circumstantial evidence, including the acknowledgment due for the registered letter sent by the company to the appellant informing him of the surrender of the lease, the resignation of Manmal Bhutoria from the company's directorship, the payment of rent by Manmal Bhutoria to the appellant, and the entries in the records of the Calcutta Municipal Corporation showing Manmal Bhutoria as the tenant.
Issues: 1. Whether the company had surrendered its lease in 1974? 2. Whether a fresh tenancy was entered into between the appellant and Manmal Bhutoria?
Ratio Decidendi: 1. The court held that the company had surrendered its lease in 1974 in accordance with the terms of the lease deed. The court relied on the acknowledgment due for the registered letter sent by the company to the appellant informing him of the surrender of the lease, as well as the fact that the company had paid rent up to the end of June 1974 and had vacated the premises. 2. The court held that a fresh tenancy was entered into between the appellant and Manmal Bhutoria after the company's surrender of the lease. The court relied on the fact that Manmal Bhutoria had paid rent to the appellant, that the appellant had granted rent receipts to Manmal Bhutoria, and that Manmal Bhutoria was listed as the tenant in the records of the Calcutta Municipal Corporation.
Final Decision: The court dismissed the appeals filed by the appellant. The judgments and decrees passed by the trial court were affirmed, but there was no order as to costs.
( 1 ) THESE two appeals have been filed by Shri Tarak Nath Sha who is the landlord in respect of premises No. 3, Leonard Road, P. S. Hastings, Calcutta-700 022.
( 2 ) THE basic fact of the matter is not much in dispute.
( 3 ) ON 23rd March, 1963 one Ram Kewal Sha, the predecessor-in-interest of Tarak Nath Sha executed a deed of lease in favour of M/s. Bhutoria Brothers Pvt. Ltd. (hereinafter referred to as the said company') for a period of 21 years. One Manmal Bhutoria was the Manager of the said Company who became a Director thereof later on. He, on behalf of the company used to reside in the said premises. The said company is a family concern of Manmal Bhutoria. He resigned from the post of the Director of the company whereafter, the company allegedly by a letter dated 18th April, 1974 terminated the said lease with effect from expiry of June, 1974.
( 4 ) CLAUSE III (iii) of the said deed of lease on the basis whereof the said notice was issued reads thus :-"notwithstanding the term hereby reserved the LESSEE MAY terminate the lease at any time after the expiry of one year from the commencement thereof by first giving two calendar months' notice in writing according to the English Calendar and the Lessor shall accept such notice or two months' rent in lieu of such notice for the determination of the lease provided always that the lessee shall have paid, fulfilled, observed and performed the covenants and conditions hereinbefore reserved and on the part of Lessee to be paid, fulfilled, observed and performed provided nevertheless the Lessee will not be entitled to exercise such option unless the lessee surrenders the demise in respect of the said demised premises. It is mutually agreed by and between the parties that the surrender of the demise to be operative must be in respect of the demised premises. "
( 5 ) ADMITTEDLY the said company paid rent @ Rs. 700/- p. m. and performed all its obligations upto end of June, 1974. Allegedly the said premises were again let out to the aforementioned Manmal Bhutoria at an increased rent of Rs. 1,100/- p. m. which included a piece of vacant land adjoining the said premises. According to the said Manmal Bhutoria no rent receipt used to be granted by the landlord. By a letter dated 27th January, 1984 the Appellant demanded possession of the said premises from the company. As the Appellant threatened to dispossess the aforementioned Manmal Bhutoria, he filed Title Suit No. 240/84 claiming, inter alia, the following reliefs :-"a. for declaration thereby declaring that the plaintiff is a monthly tenant under the defendant No. 1, as a trustee of the premises in suit described in the schedule given at the foot of this plaint at a monthly rental of Rs. 1100/- per month payable according to English Calendar month. b. A decree for permanent injunction, thereby permanently restraining the defendant No. 1 his agents and/or heirs and successors or assignees and/or agents and/or heirs servants from denying in any manner, the plaintiff's right to possess the premises in suit as per schedule given at the foot of this plaint on a monthly tenant under the defendant No. 1 on and from July 1, 1974 on payment ofmonthly rental at the rate of Rs. 1100/- payable according to English Calendar Month,c. for damages;d. for costs and incidentals to this suit against the defendant No. 1;e. such further or other relief or reliefs as to this learned Court may seem fit and proper in the matter in the interests of justice".
( 6 ) THE appellant also filed a suit being Title Suit No. 812 of 1984 against the said Company claiming, inter alia, for its eviction on the ground of expiry of lease.
( 7 ) BOTH the aforementioned suits were heard analogously. The learned trial Judge in view of the rival contentions framed the following issues in T. S. No. 812084 :1. Is the suit maintainable? 2. Is the plaintiff entitled to a decree for khas possession as prayed for?3. Is the plaintiff entitled to mesn
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