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IN THE HIGH COURT OF CALCUTTA
Jyotirmay Bhattacharya & Ishan Chandra Das, JJ.
Biswaranjan Maity – Appellant
Versus
Anjana Sengupta & Ors. – Respondents
S.M.A.T. 5 of 2015 (CAN 5894 of 2015)
Decided On : 26-04-2016
EVICTION SUIT - POSSESSION - TENANCY - ADVERSE POSSESSION - [ORDER 21 RULE 97, 101 CPC] - The court dismissed the appellant's appeal against the lower court's order rejecting his claim of tenancy in the suit property and obstructing the execution of a decree for eviction passed against his brother. The court held that the appellant failed to establish his tenancy right and that the tenancy of his father was impliedly surrendered when his brother started paying rent in his own name without objection from the other siblings.
Fact of the Case:
The appellant, the younger brother of the judgment debtor, filed a miscellaneous case under Order 21, Rule 97 read with Section 101 of the Civil Procedure Code, claiming tenancy in the suit property inherited from his father. He alleged that the decree for eviction obtained by the decree-holder against his brother was obtained in collusion and that he was never served with an eviction notice or a decree for eviction.
Finding of the Court:
The court found that the appellant failed to establish his tenancy right in the suit property. It held that the documents produced by the appellant were merely documents of possession and did not establish his right of tenancy. The court also noted that the appellant could not produce any rent receipts showing that he paid rent after the death of his father or that he attempted to deposit the rent in the office of the rent controller.
Issues: 1. Whether the appellant had a valid tenancy right in the suit property. 2. Whether the decree for eviction obtained by the decree-holder against the appellant's brother was obtained in collusion.
Ratio Decidendi: The court held that the appellant failed to establish his tenancy right in the suit property. It relied on the fact that the appellant could not produce any rent receipts showing that he paid rent after the death of his father or that he attempted to deposit the rent in the office of the rent controller. The court also noted that the appellant's brother started paying rent in his own name without objection from the other siblings, which impliedly surrendered the appellant's tenancy.
Final Decision: The court dismissed the appellant's appeal and upheld the lower court's order rejecting his claim of tenancy in the suit property.
Jyotirmay Bhattacharya, J.
This second miscellaneous appeal is directed against the judgment and order dated 20th May, 2015 passed by the Learned Fourth Bench, City Civil Court at Calcutta affirming the judgment and order being No. 79 dated 7th September, 2012 passed by the Learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Miscellaneous Case No. 159 of 2007, at the instance of the appellant who obstructed the execution of the decree for eviction passed against his brother viz. Dr. Chittaranjan Maity.
2. Let us now consider as to how far the learned Courts below were justified in passing the impugned order in the facts of the instant case.
3. An eviction suit being ejectment suit No.306 of 1999 was filed against the Elder brother of the appellant, namely, Dr. Chittaranjan Maity on the ground of default in payment of rent and also for subletting. The said suit was subsequently transferred to another court and on being so transferred, the said suit was re-numbered as Ejectment Suit No.1692 of 2001. During the pendency of the said suit, the said Chittaranjan Maity died and upon his death his legal heirs and representatives were substituted in the said suit. But since they did not come forward to contest the said suit, the suit was decreed ex parte on 6th September, 2005. Since vacant and khas possession was not delivered to the decree-holder in pursuance of the said decree, an execution case was levied by the decree-holder. The said execution case was registered as Ejectment Execution Case No. 2017 of 2005. Bailiff went to deliver possession of the suit property to the decree-holder but possession could not be delivered to the decree-holder as the Bailiff was resisted on 17th May, 2005. Subsequently, the decree-holder filed an application for police help for removal of the obstruction and the said application for police help is still pending for consideration before the learned Executing Court.
4. Immediately after the Bailiff was resisted in May, 2005, one Sri Jahar Maity being the uncle of the present appellant filed an application under Order 21, Rule 97 read with Rule 101 of the Civil Procedure Code to resist the execution of the said decree by claiming title in the suit property by way of adverse possession. The said proceeding was registered as Misc. Judicial No. 159 of 2006. The decree-holder contested the said miscellaneous case and ultimately the said miscellaneous case was rejected by the Executing Court on 28th July, 2008.
5. Challenging the said order of rejection of his miscellaneous case, he preferred a miscellaneous appeal before the Appeal Court and the said miscellaneous appeal which was registered as Misc. Appeal No. 2 of 2009 was again dismissed on contest by the Appeal Court on 27th August, 2009. He did not prefer any further appeal. As such, that chapter was closed with the dismissal of his miscellaneous appeal in the manner as aforesaid.
6. The present appellant, who is the younger brother of the judgment debtor, has also filed a miscellaneous case under Order 21, Rule 97 read with Section 101 of the Civil Procedure Code on 13th June, 2007. He wanted to resist the execution of the said decree by contending that originally their father, namely, Panchanan Maity was inducted as a tenant in respect of the suit premises by the then owner thereof, namely, Satish Charan Law at the rate of Rs.24/- per month payable according to English Calendar month. Subsequently, the grand-son of the said Satish Charan Law namely, Lakshhmi Charan Law who inherited the suit property by way of succession sold the suit property to one Subodh Kumar Mukherjee who again transferred the suit property in favour of the present decree-holder, namely, Anjana Sengupta.
7. It was alleged by the appellant that his father Panchanan Maity was a tenant in respect of the suit premises during his lifetime and on his death on 19th February, 1968, the tenancy was inherited by all his legal heirs and heiresses in common. Thus, t
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