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1999 Supreme(Cal) 137
HIGH COURT OF CALCUTTA
B. BHATTACHARYA, J.
N Sunder Ranjan - Appellant
Versus
Provat Kumar Roy – Respondent
Decided on : Apr 01, 1999
Provat Kumar Roy, S.B. Mukherji, Tapan Kumar Dey
Mere payment of rent does not create a tenancy unless the tenant is given possession of the demised premises.
Headnote:
WEST BENGAL PREMISES TENANCY ACT - SECTION 17(2) - CREATION OF TENANCY - REQUISITES - POSSESSION - PAYMENT OF RENT - APPLICATION UNDER SECTION 17(2) - NOT A FINAL DECISION - TO BE DECIDED ALONG WITH THE MAIN ISSUE.
Fact of the Case:
Petitioner filed an application under Section 17(2) of the West Bengal Premises Tenancy Act, disputing the landlord-tenant relationship with the opposite party. The opposite party claimed that the petitioner was inducted as a tenant from February 1, 1982, but the petitioner contended that he never got possession of the suit flat and hence no tenancy was created.
Finding of the Court:
The court held that mere payment of rent does not create a tenancy unless the tenant is given possession of the demised premises. In this case, the previous tenant had come forward and asserted that the landlord never took possession from him, and had handed over the key of the flat before the court. Therefore, no tenancy could be created in favor of the petitioner merely because he paid rent for the month of February 1982.
Issues: 1. Whether a tenancy was created between the parties from February 1, 1982. 2. Whether the order passed under Section 17(2) of the West Bengal Premises Tenancy Act was a proper finding of fact.
Ratio Decidendi: 1. The court relied on the principle that a lease is a doctrine of separation of ownership and possession, and that mere payment of rent does not create a tenancy unless it is established that the tenant actually got possession of the property. 2. The court also considered the impact of the application filed by the previous tenant under Section 151 of the Code of Civil Procedure, in which the tenant had stated that the landlord never took possession from him.
Final Decision: The court set aside the order passed under Section 17(2) of the West Bengal Premises Tenancy Act and directed the trial court to decide the issue of landlord-tenant relationship between the parties positively within a month, after giving opportunities to the parties to lead evidence on the question.
1. THIS revisional application under section 115 of the Code of Civil Procedure is at the instance of defendant no. 1 in a suit for eviction and is directed against Order No, 104 dated July 25, 1997 passed by the learned Munsif. 2nd Court, Alipore in Title suit No. 148 of 1984 thereby disposing of an application under section 17 (2) of the West Bengal Premises Tenancy Act filed by the petitioner herein.
2. THE opposite party no. 1 filed the aforesaid Title Suit No. 148 of 1984 for eviction of the present petitioner on the ground of default in payment of rent from April, 1982. In the said suit, the opposite party no. 2 was made a proforma defendant.
According to the opposite party no. 1, the opposite party no. 2 was a tenant in respect of the suit property and the said opposite party no. 2 by a letter dated January 27, 1982 expressed his intention to surrender the tenancy on the expiry of January 31, 1982 and thereafter the petitioner was inducted in the suit flat from February 1, 1982. According to the opposite party no. 1, the petitioner failed to pay any rent from the month of April, 1982.
3. AFTER entering appearance in the suit, the present petitioner filed an application under Section 17 (2) of the West Bengal Premises Tenancy act thereby disputing relationship of landlord and tenant between the parties. According to the present petitioner although be agreed to take tenancy on payment of rent and amount of rent was paid for the month of February, 1982 and he also deposited certain an amount as security as the opposite party no. 2 did not vacate the suit flat. inspite of giving letter of surrender he never got possession of the suit flat. Therefore, according to the petitioner no tenancy ever commenced.
4. IT will not be out of place to mention here that the defendant no. 2 appeared in the said suit and filed an application under Section 151 of the Code of Civil Procedure before the learned trial Judge thereby stating that although he gave notice expressing his intention to surrender by January 31, 1982 but as he could not wind up his affairs in Calcutta by the end of January, 1982, he informed opposite party no. 1 that he would vacate the premises by the end of February, 1982 and the security deposit for one month rent should be adjusted towards rent for February, 1982. Subsequently, on March 1, 1982 the said opposite party no. 2 came to Calcutta to hand over possession of the tenanted portion to the opposite party no. 1 but he refused to accept possession from him. Thereafter, the said opposite party no. 2 by letter asked the opposite party no. 1 to take possession but the opposite party no. 1 refused to take possession. On such allegation, the opposite party no. 2 prayed before the learned trial Judge to pass a direction upon the opposite party no. 1 to take vacant possession of the premises from opposite party no. 2.
It appears from Order No. 39 dated August 10, 1998 that the learned trial Judge disposed of the said application by permitting the opposite party no. 2 to deposit the key of the said premises in the court and the opposite party no. 1 was asked to take the said key without prejudice to the rights and contention in the suit.
5. BY the order impugned, the learned trial Judge has held that by agreement dated February 1, 1982 between the petitioner and opposite parry no. 1, a tenancy was created and that the petitioner was a defaulter in payment of rent from April, 1982 till August 10, 1998 when possession was taken by the plaintiff pursuant to the Order No. 39 dated August 10, 1998. Therefore, according to the learned trial Judge, the petitioner was entitled to suspension of rent from August 11, 1988.
6. BY the order impugned, the learned trial Judge directed the petitioner to pay a sum of Rs. 53,489/- as arrears with interest from April, 1982 till August 10, 1988.
Being dissatisfied, the defendant no. 1 has preferred the instant revisional application.
7. MR. Mukherjee, the learned advocate appearing
