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High Court Of Calcutta
NIRENDRA KRISHNA MITRA, ASISH BARAN MUKHERJEE
RAMESHWAR ROY - Appellant
Versus
BAIDHENDRA KINKAR PATRA - Respondent
F.A. No. 31 of 1994 with C.O.T. No. 2381 of 1990
Decided On : 05/14/1998
TRANSFER OF PROPERTY ACT - SECTION 108 (M), (O) AND (P) - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13 (1) (B), (D) AND (E) - EVICTION - TRESPASSER - LANDLORD AND TENANT - In a suit for ejectment, the Court held that the tenant's acts of forcibly occupying and converting the disputed western verandah into a kitchen, causing annoyance and nuisance to the landlord and other tenants, and constructing a slab on the wall of the verandah, did not amount to contravention of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, as the verandah was not part of the tenant's tenancy. The Court further held that the tenant could not be evicted under Section 13 (1) (b), (d) and (e) of the West Bengal Premises Tenancy Act, 1956, as the verandah was not a part of the leased premises. The Court also dismissed the landlord's cross-objection for eviction on the ground of default, as the tenant was not in default at the time of the notice of ejectment.
Fact of the Case:
The plaintiff/respondent, the owner of a three-storied building, filed a suit for eviction of the defendant/appellant, his tenant, from the suit premises, alleging that the defendant had forcibly occupied and converted the western verandah into a kitchen, causing damage, smoke nuisance, and material deterioration of the building, and also causing annoyance to the plaintiff and his family. The defendant denied the allegations and claimed that he had been using the verandah as a kitchen since the inception of his tenancy. The plaintiff also filed an application under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, seeking to strike out the defendant's defence against delivery of possession. The trial court allowed the plaintiff's application and decreed the suit in his favor.
Finding of the Court:
The Court held that the defendant's acts of forcibly occupying and converting the disputed western verandah into a kitchen, causing annoyance and nuisance to the landlord and other tenants, and constructing a slab on the wall of the verandah, did not amount to contravention of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, as the verandah was not part of the tenant's tenancy. The Court further held that the tenant could not be evicted under Section 13 (1) (b), (d) and (e) of the West Bengal Premises Tenancy Act, 1956, as the verandah was not a part of the leased premises. The Court also dismissed the landlord's cross-objection for eviction on the ground of default, as the tenant was not in default at the time of the notice of ejectment.
Issues: 1. Whether the defendant's acts amounted to contravention of Section 108 (m), (o) and (p) of the Transfer of Property Act? 2. Whether the defendant could be evicted under Section 13 (1) (b), (d) and (e) of the West Bengal Premises Tenancy Act, 1956? 3. Whether the landlord was entitled to eviction on the ground of default?
Ratio Decidendi: The Court held that clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act apply only to the premises demised and not to any other premises or building. Therefore, the defendant's acts of occupying and converting the disputed western verandah, which was not part of his tenancy, did not amount to contravention of the said provisions. The Court further held that the tenant could not be evicted under Section 13 (1) (b), (d) and (e) of the West Bengal Premises Tenancy Act, 1956, as the verandah was not a part of the leased premises. The Court also held that the landlord was not entitled to eviction on the ground of default, as the tenant was not in default at the time of the notice of ejectment.
Final Decision: The appeal was allowed, and the judgment and decree of the trial court were set aside. The cross-objection filed by the landlord was also dismissed.
( 1 ) THIS appeal is directed against the judgment and decree dated 29-6-89 passed by the learned Judge, XII Bench, City Civil Court at Calcutta in Ejectment Suit No. 902 of 1992. A cross-objection preferred by the respondent being C. O. T. No. 2381 of 1990 is also heard along with the appeal.
( 2 ) THE case of the plaintiff/respondent inter alia, is as follows :-The plaintiff/respondent is the owner of a three-storied building being premises No. 5/2 and No. 7, Ramkanai Adhikari Lane, Calcutta-12. The two premises constitute one building, back portion of which is No. 7, Ram Kanai Adhikari Lane.
( 3 ) THE defendant/appellant was the tenant under the plaintiff/respondent in respect of three rooms being the south-western room on the first floor, and two on the ground floor with common bath and privy in the suit premises being No. 5/2, Ramkanai Adhikari Lane, at a monthly rental of Rs. 115/- payable accordingly to the English Calendar. There is a covered verandah running east to west all along the first floor of the premises No. 5/2, Ram Kanai Adhikari Lane described in the plaint as the western verandah. The same has not been let out to any tenant but is meant for common use by different tenants of the premises and also the landlord.
( 4 ) THE defendant/appellant recently forcibly occupied the said western verandah and converted the same into an additional kitchen and started cooking there causing damage to the premises and also causing smoke nuisance and also material deterioration of the building apart from causing annoyance to the plaintiff and the members of his family. The aforesaid acts fell within the provisions of Section 108 (m), (o) and (p) of the Transfer of Property Act. The defendant/appellant had also fixed a concrete slab on the western wall of the said western verandah for the purpose of using as a rack for keeping utensils etc. without the consent of the plaintiff-respondent. The defendant/appellant was also a defaulter in payment of rent since May, 1982.
( 5 ) EARLIER, in 1978 also, the defendant/appellant made an attempt to convert the western verandah into an additional kitchen and the plaintiff/respondent sent an ejectment notice on 25th of December, 1978. On the receipt of the said notice, the defendant/appellant approached the plaintiff/respondent and requested him not to file any ejectment suit and also immediately removed the kitchen and made the western verandah vacant.
( 6 ) THIS time, the plaintiff/respondent sent an ejectment notice dated 22nd of May, 1982 to the defendant/appellant at his residence by registered post, asking him to vacate the suit premises and to deliver vacant possession of the same on the expiry of the month of June, 1982. The said notice 4 was duly received by the defendant/appellant's son on 24th of May, 1982. Another copy of the said notice was addressed to premises No. 7, Siddheswar Charan Lane where the defendant/appellant carries on his business. It was accepted by the defendant/appellant's brother on 28th of May, 1982. On receipt of the ejectment notice, the defendant/appellant through his lawyer Shri Narayan Ch. Ghosh, Advocate sent a reply admitting that he was using the western verandh as a kitchen, but falsely alleging that he was using the same as a kitchen since the inception of his tenancy. The defendant/appellant used the eastern side room on the ground floor as his kitchen prior to his encroachment of the western verandah. As the defendant/appellant did not vacate the premises in spite of the said notice to quit, the plaintiff/landlord filed the above ejectment suit for eviction khas possession and also mesne profits from May, 1982 till the date of delivery of possession.
( 7 ) THE defendant/appellant contested the suit by filing written statement denying and disputing all the material allegations of the plaint. His case was, that at the time of inception of the tenancy, the plaintiff/respondent allowed the defendant/appellant to use the w
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