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2000 Supreme(Cal) 218
High Court Of Calcutta
SAMARESH BANERJEE, Gorachand De
GOVINDA MOUT - Appellant
Versus
TARAK NATH SHAH - Respondent
F. A. T. 1996 Of 1993
Decided On : 04/28/2000
HARISH TANDON, Sudhis Das Gupta
Service rendered in lieu of right to occupy does not amount to acceptance of rent under the West Bengal Premises Tenancy Act.
Headnote:
LANDLORD AND TENANT - TENANCY - LICENSE - DISTINCTION - SERVICE TENANCY - RENT - SERVICE RENDERED IN LIEU OF RIGHT TO OCCUPY - NOT RENT - DEPOSIT OF RENT WITH RENT CONTROLLER - CANNOT CREATE TENANCY - WEST BENGAL PREMISES TENANCY ACT.
Fact of the Case:
Govinda Mout filed a suit claiming that he was a monthly tenant of one room and a privy in the premises owned by Tarak Nath Shah. Tarak Nath Shah, on the other hand, filed a suit claiming that Govinda was a licensee in respect of the same room and sought vacant possession. The trial court dismissed Govinda's suit and decreed Tarak Nath's suit.
Finding of the Court:
The court found that Govinda was a licensee and not a tenant. It held that the service rendered by Govinda could not be construed as rent within the meaning of the West Bengal Premises Tenancy Act and that the deposit of rent with the Rent Controller without proof of creation of tenancy could not prove the creation of tenancy.
Issues: 1. Whether Govinda was a tenant or a licensee? 2. Whether the service rendered by Govinda could be construed as rent under the West Bengal Premises Tenancy Act?
Ratio Decidendi: 1. The court held that Govinda was a licensee and not a tenant based on the following factors: - Govinda's own evidence was contradictory and did not support his claim of tenancy. - Tarak Nath produced evidence to show that he had given Govinda the room as a licensee and not as a tenant. - Govinda had never challenged the non-granting of rent receipts in the appropriate forum. - The payment of rent without receipt for a long period of time was disbelieved by the court. 2. The court held that the service rendered by Govinda could not be construed as rent under the West Bengal Premises Tenancy Act because: - Service rendered cannot be quantified by money value so as to bring it within the ambit of the rent act. - The deposit of rent made by Govinda could not be construed as a creation of tenancy or its continuation.
Final Decision: The court dismissed both appeals and confirmed the judgment and decree of the trial court.
( 1 ) -ONE Govinda Mout filed Title Suit No. 405 of 1986 against one Tarak Nath Shah in the City Civil Court, Calcutta praying for a declaration that he is a monthly tenant under the defendant in respect of one room and a privy on the northern side of premises No. 3, Leonard Road, Calcutta-22 and/or permanent injunction restraining the defendant, his men and agents from interfering with his possession and enjoyment of the suit property.
( 2 ) SHRI Tarak Nath Shah, on the other hand, instituted Title Suit No. 1248 of 1986 against the said Govinda Mout in the same Court praying for a declaration that the defendant was a licensee in respect of one room situated on the northern side of the premises No. 3, Leo'nard Road under the plaintiff and for vacant and khas possession of the said premises.
( 3 ) BOTH the suits were tried analogously by the Fourth Bench of the City Civil Court at Calcutta and Shri P. K. Mitra, Judge of the said Court by a common judgment dated 30. 4. 93 dismissed the Title Suit No. 405 of 1986 and decreed the Title Suit No. 1248 of 1986 on contest in favour of Tarak Nath Shah with a direction upon Govinda Mout to hand over vacant possession of the suit premises within one month failing which liberty was given to the landlord to execute the decree. Against the said judgment, Govinda Mout filed FAT No. 1996 of 1993 against the decree passed in Title Suit No. 1248 of 1986 and FAT No. 1997 of 1993 against the order of dismissal of the Title Suit No. 405 of 1986. The defendant Tarak Nath Shah appeared in both the appeals and those were taken up for analogous hearing. So this judgment is to govern the fate of both the appeals.
( 4 ) THE plaint case as made out by Govinda Mout in Title Suit No. 405 of 1986 is that he was inducted as a tenant in respect of one room and a privy in the northern side of the premises No. 3, Leonard Road, Calcutta from by the defendant at a rental of Rs. 35/- payable according to English Calendar month on the understanding that no rent receipt would be issued, that the rent was raised to Rs. 45/- per month and lastly up to Rs. 55/ per month and Govinda paid rent to the landlord Tarak Nath in respect of the said tenancy up to the month of January, 1986. But on 4. 3. 86 Tarak Nath and his men attempted to dispossess Govinda from the said room for which a General Diary was made with the local police station, and for protecting his valuable tenancy right, the instant suit was filed for a declaration of his tenancy and also for a permanent injunction in the manner hereinabove indicated. On the other hand, the plaint case of Shri Tarak Nath Shah in Title Suit No. 1248 of 1986 is that in the year 1979 Govinda approached him for providing him a temporary accommodation in a room situated in the northern side of a plot of land, being a portion of premises No. 3, Leonard Road, Calcutta and assured to look after the said plot of land as there was apprehension of encroachment thereof by the out siders. The defendant also represented that he was in service in the office of the Navy Commander as a gardener (Mail) and would render voluntary services to the plaintiff as and when required. On the basis of such representations, Tarak Nath permitted Govinda by way of leave and licence to occupy the said room free of charge. Since 1979 Govinda was occupying the said room as a licensee under the plaintiff, but being influenced by interested persons Govinda claimed a right of tenancy in respect of the said room as well as the privy and filed the Title Suit No. 405 of 1986. By a letter dated 21. 4. 80, Tarak Nath withdrew and revoked the leave and licence and called upon Govinda to remove all his belongings from the room given to him on the basis of leave and licence. In spite of receipt of the notice Govinda failed and neglected to vacate and deliver vacant possession and accordingly Tarak Nath was constrained to file the title suit praying for a declaration that the defendant was a licensee in
