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High Court Of Calcutta
PARITOSH KUMAR MUKHERJEE
GITA DEVI SHAH - Appellant
Versus
CHANDRA MONI KARNANI - Respondent
FIRST APPEAL 178 Of 1988
Decided On : 03/17/1993
LANDLORD AND TENANT - EJECTMENT - REASONABLE REQUIREMENT - NOTICE - VALIDITY - TENANCY - EXTENT - STAMP DUTY - ADMISSIBILITY OF EVIDENCE - TRANSFER OF PROPERTY ACT, 1882, S. 108 (M), (O), (P) - WEST BENGAL PREMISES TENANCY ACT, 1956, SS. 3, 13 (1) (FF), 13 (2), 13 (2A), 13 (3A), 13 (6), 17 (2), 17 (2A).
Fact of the Case:
Plaintiffs purchased the suit premises from Defendant No. 2 and served a notice of ejectment on Defendant No. 1, alleging default, violation of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, reasonable requirement, and sub-letting. Defendant No. 1 contested the suit, claiming a lease of 11 years with an option of renewal for another 5 years of the entire building, created in her favor by a document dated 2/05/1975. The trial court dismissed both suits, holding that the plaintiffs failed to establish their ownership of the premises, the tenancy was only in respect of a part of the premises, and the notice was bad in law. The plaintiffs appealed.
Finding of the Court:
The court held that the plaintiffs failed to prove their ownership of the premises as the deeds of conveyance were not properly stamped and were inadmissible in evidence. The court also held that the tenancy was in respect of the entire premises, as the document dated 2/05/1975, though unregistered, created tenancy rights in favor of the lessee with the right to sublet. However, the court held that the notice of ejectment was bad in law as it did not correctly describe the tenancy and was not binding on the defendant.
Issues: 1. Whether the plaintiffs have established their ownership of the premises? 2. Whether the tenancy was only in respect of a part of the premises? 3. Whether the notice of ejectment was bad in law?
Ratio Decidendi: 1. The court held that the plaintiffs failed to prove their ownership of the premises as the deeds of conveyance were not properly stamped and were inadmissible in evidence. The court relied on Section 35 of the Stamp Act, which provides that instruments chargeable with duty shall not be admitted in evidence for any purpose, if not duly stamped. The court held that it has an independent liability to look into the admissibility of the evidence and to decide the question of stamp duty, even if the parties fail to take up the points. 2. The court held that the tenancy was in respect of the entire premises, as the document dated 2/05/1975, though unregistered, created tenancy rights in favor of the lessee with the right to sublet. The court relied on the fact that the document described the leased premises as 1/1, Rowland Road, Calcutta-20, and that the rent receipts and Rent Control challans also described the tenancy as 1/1 Rowland Road, Calcutta-20. 3. The court held that the notice of ejectment was bad in law as it did not correctly describe the tenancy and was not binding on the defendant. The court relied on Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, which requires that a notice of ejectment must be served on the tenant before instituting a suit for ejectment. The court held that the notice must clearly describe the tenancy and that the grounds stated in the notice can only be taken in the plaint.
Final Decision: The court dismissed the appeals and upheld the judgment of the trial court.
( 1 ) THESE two appeals are arising out of the judgment and order dated 31/03/1987, passed by the learned Assistant District judge, 2nd Court, Alipore in Title Suit No. 247 of 1981 and Title Suit No. 154 of 1983, which were heard analogously.
( 2 ) SMT. Gita Devi Shah and others, being the plaintiffs in Title Suit No. 247 of 1981, purchased the suit premises being 1/1 Rowland Road, Calcutta-20, from the defendant No. 2 in three equal and undivided 1/3 shares under registered deeds of Kobala dated 26/07/1978. After the said purchase of the suit premises, a letter was issued by the Advocate on behalf of the plaintiffs to the defendant No. 1, Smt. Chandra Moni Karnani, informing about the transfer of the suit premises. The said letter has been marked as Exhibit No. 2 in the suit. On the same day, a letter of attornment was also issued by the defendant No. 2 to defendant No. 1. It is claimed by the plaintiffs of Title Suit No. 247 of 1981 that the defendant No. 1 was tenant originally under defendant No. 2 and now under the plaintiffs in respect of five rooms on the ground floor, five rooms in the first floor with a servant quarters, garage and kitchen.
( 3 ) THEREAFTER, on the completion of three years, as required under provisions of S. 13 (3a) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act of 1956), the plaintiffs in Suit No. 247 of 1981, instituted the suit for ejectment against the defendant No. 1, inter alia, on the ground of default, violation of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and for reasonable requirement and also for sub-letting.
( 4 ) THE ejectment notice was served upon the defendant No. 1/08/1981 and the suit was instituted on December l, 1981. Both the defendants entered appearance in the said suit (Title Suit No. 247 of 1981), but it has been contested only by the defendant No. 1.
( 5 ) IN the written statement filed by the defendant No. 1, the validity of the transfer has been challenged and the relationship of landlord and tenant between the parties have also been denied. It has been further claimed in the written statement filed by the defendant No. 1 that the suit has been filed in collusion with the defendant No. 2. The defendant No. 1 has also categorically denied the description and/or extent of tenancy, claimed by the plaintiff in the suit and claimed a lease of 11 years with option of renewal for another 5 years of the entire building, created in her favour by a document dated 2/05/1975.
( 6 ) AFTER entering appearance in the Suit No. 247 of 1981, the defendant No. 1 instituted another suit being Title Suit No. 154 of 1983, challenging the validity of the deeds and prayed for declaration that the four instruments described in the schedule of the plaint of Title Suit No. 154 of 1983 are void or viodable on the ground of mala fide, collusion and fraud, alternatively, the defendant No. 1 is a tenant in respect of the entire premises No. 1/1, Rowland Road, Calcutta-20.
( 7 ) THE defendants Nos. 1, 2, and 3 (plaintiffs in Title Suit No. 247 of 1981) in the suit contested the same by filing written statement and denied all material allegations averred in the plaint. The defendants in the said suit (plaintiffs in Title Suit No. 247 of 1981) have also denied the creation of lease, in favour of the defendant No. 1 by letter dated 2/05/1975.
( 8 ) BOTH the suit were tried analogously and a single Judgment dated 31/03/1987, has been delivered by the learned Judge, dismissing both the suits.
( 9 ) HENCE, these two appeals have been filed by the plaintiffs of both the suits, before this Hon'ble Court.
( 10 ) MR. Ashoke Banerjee, learned Advocate is appearing with Amalesh Roy, learned Advocate, on behalf of the plaintiff/appellants in F. A. No. 178 of 1988 and respondents in F. A. No. 390 of 1990 and Mr. Ramaprasanna Bagchi, learned Advocate, with Mr. Janardan Chakraborty and Mr. Jahar Chakraborty, is ap
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