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2006 Supreme(Cal) 692
High Court Of Calcutta
Before: Kalyan Jyoti Sengupta And Sanjib Banerjee, JJ.
DURGA SHAW - Appellant
Versus
RAMDHANI SINGH - Respondent
F. A. 130 Of 1997
Decided On : 11/10/2006
Anindita Mazumdar, D.K.DAS, Mihir Kumar Haider, Raj Grihi Ram, Ram Behari Prasad, S.C.Chatterjee
In a suit for eviction on the ground of trespass, the defendant who claims to be an heir of one of the erstwhile joint tenants has the burden of proving that he was an heir and was ordinarily residing with the deceased joint tenant at the time of his death.
Headnote:
TENANCY - TRESPASS - EVICTION SUIT - BURDEN OF PROOF - HEIRSHIP - JOINT TENANCY - WEST BENGAL PREMISES TENANCY ACT, 1956, SECTION 2(H) - The appellant, claiming to be the son of one of the erstwhile joint tenants, sought to establish his right to remain in occupation as an heir. The plaintiffs, who had purchased the premises, filed an eviction suit on the ground that the appellant and the second defendant were trespassers. The appellant relied on a certificate issued by the Mukhia of a Gram Panchayat, an undated letter issued by one of the erstwhile owners, and a rent receipt for the month of August 1980. The learned Trial Judge disbelieved the certificate and the rent receipt and held that the letter of Smt. Gouri Bose had been tampered with. The appellant challenged the findings of the learned Trial Judge.
Fact of the Case:
The plaintiffs, who had purchased the premises, filed an eviction suit on the ground that the appellant and the second defendant were trespassers. The appellant, claiming to be the son of one of the erstwhile joint tenants, sought to establish his right to remain in occupation as an heir. The appellant relied on a certificate issued by the Mukhia of a Gram Panchayat, an undated letter issued by one of the erstwhile owners, and a rent receipt for the month of August 1980.
Finding of the Court:
The Court held that the appellant failed to prove that he was an heir of Bedu Shaw and was ordinarily residing with Bedu Shaw at the suit premises at the time of Bedu Shaw's death. The Court also held that the certificate issued by the Mukhia was not a public document and was not admissible in evidence. The Court further held that the rent receipt for the month of August 1980 was irrelevant as the appellant had admitted that the sale relating to premises No. 109b had been completed in July 1980.
Issues: 1. Whether the appellant was an heir of Bedu Shaw and was ordinarily residing with Bedu Shaw at the suit premises at the time of Bedu Shaw's death? 2. Whether the certificate issued by the Mukhia was a public document and was admissible in evidence? 3. Whether the rent receipt for the month of August 1980 was relevant?
Ratio Decidendi: 1. The appellant failed to prove that he was an heir of Bedu Shaw and was ordinarily residing with Bedu Shaw at the suit premises at the time of Bedu Shaw's death. 2. The certificate issued by the Mukhia was not a public document and was not admissible in evidence. 3. The rent receipt for the month of August 1980 was irrelevant as the appellant had admitted that the sale relating to premises No. 109b had been completed in July 1980.
Final Decision: The appeal was dismissed and the Judgment and decree of the learned Court below were affirmed.
( 1 ) I have had the advantage of going through the draft Judgment of my Learned Brother I cannot do anything but to record my agreement with His Lordship's findings and ordering portion. But I feel my task will remain incomplete if I do not add a few words to supplement to the Judgment prepared by my Learned Brother.
( 2 ) THE respondents/plaintiffs sued appellant for his eviction on the ground that the appellant and the second defendant viz. one Deoki shaw are the trespassers in one room in the ground floor of Premises no. 109b, Keshab Chandra Sen Street, Kolkata (hereinafter referred to as the suit premises ). The respondent/plaintiff No. 1 after having purchased the suit property jointly with the plaintiff No. 2 in the month of July, 1980 and having considered the list of tenants supplied by the vendors found that the appellant and the second defendant are not figuring as the tenants in the list supplied by the vendors through his learned lawyer, called upon them to establish their right to remain in possession. But they failed to satisfy the plaintiffs. As such, the suit was filed for treating them to be the trespassers and for recovery of khas possession. The second defendant did not file any written statement nor entered appearance to contest the suit. First defendant to contest the suit filed the written statement and took the stand that his father Bedu Shaw was joint tenant with Deoki Shaw. On death of the said Bedu Shaw, the first defendant, being the, son, heir and legal representative, claimed that he was entitled to inherit the right of joint tenancy and as such he cannot be termed to be a trespasser nor he is liable to be evicted.
( 3 ) ON the aforesaid stand taken by the parties in their pleading the learned Trial Judge rendered the Judgment of passing decree deciding the issue as to whether the first defendant is the heir and legal representative of the said Bedu Shaw, meaning thereby whether the first defendant is a joint tenant or not.
( 4 ) HAVING read the pleadings and the issues framed it is clear that the burden of proof of the case of the defendant rested with the first defendant, since the plaintiff denied that the first defendant was the son or heir of the said Bedu Shaw.
( 5 ) SIMILARLY in the written statement the appellant/first defendant denied ownership of the plaintiff. So, plaintiff had to prove the ownership. It appears from the record that in order to prove the case of the plaintiff they have examined six witnesses whereas defendant examined himself alone to prove his own case of father and son relationship. Apart from oral evidence first defendant adduced documentary evidence viz. certificate of a Prodhan (Mukhia) of the concerned Gram Panchayat, and a letter of attornment purported to have been addressed amongst others to the appellant and a rent receipt issued by the vendor in the name of Bedu Shaw and the second defendant.
( 6 ) THE learned Trial Judge reading the evidence both oral and documentary and having gone through the pleadings recorded his finding of ownership of the property in favour of the plaintiff but held that the appellant failed to prove the case of relationship of father and son made out by the first defendant. Learned Trial Judge observed that the letter of attornment is a forged and manufactured one for the reasons that the nature and style of the writing in the body of the letter of attornment and the writing of the names and the addressee in the letter of attornment are in different hands and inks. The certificate of the Gram Prodhan has also been disbelieved as being manufactured. So, the case of relationship of father and son between Bedu Shaw and the first defendant has not been established.
( 7 ) THE learned counsel for the appellant, while assailing the judgment and findings of the learned Trial Judge, submits that the learned Trial Judge committed legal error by shifting the burden upon the appellant to prove the case of tenancy as the
