1. Transfer of thika property by way of gift without obtaining prior permission from the competent authority is void under Section 5(4) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. 2. A tenant is estopped from challenging the title of the landlord under Section 116 of the Evidence Act, 1872.

JUDGMENT :

Siddhartha Roy Chowdhury, J.

1. This appeal impeaches the judgement and decree passed by learned Judge, 3rd Bench, City Civil Court in Title Appeal No. 51 of 2014, reversing the judgement and decree passed by learned Judge, 6th Bench, Small Causes Court at Calcutta on 24th April, 2014 in Ejectment Suit No. 1897 of 2001.

2. Briefly stated, Jadunandan Prasad, the thika tenant as landlord inducted Chhotey Lal Modi as a tenant in respect of the property in suit at monthly rental of Rs. 62/-payable according to English Calendar month. Jadunandan Prasad, during his life time terminated the tenancy by issuing a notice to quit on 28th November, 1985 under Section 13 (6) of the West Bengal Premises Tenancy Act. By the said notice the defendant was called upon to quit and vacate the peaceful possession of the suit property on the expiry of January, 1986. The notice was returned to the sender with the postal remark ‘not claimed’. But the defendant did not quit and vacate the suit premises. Jadunandan Prasad the original landlord died intestate on 30th January, 1986 leaving behind him surviving Harish Chandra Gupta, Laldei Devi and Sumitra Devi Jaiswal as his legal heirs and successors who filed the suit for eviction on the ground of violation of clause (m), (o) and (p) of Section 108 of the Transfer of Property Act as well as on the ground of default. The erstwhile thika tenants being the landlords transferred their property in favour of Anil Kumar Gupta, the present plaintiff by executing a deed of gift during the pendency of the suit.

3. The defendant, Chhotey Lal Modi contested the suit by filing written statement denying all material allegations made against him by the landlord. The defendant denied to have made any addition and alteration in the suit room, by constructing a C.I. Roof under the R.T. Roof without the consent and permission of the landlord. The defendant stated that at the time of his induction there was a dwarf partition wall in the suit room and concrete loft. The defendant has been running coal shop and grocery shop in the suit room. Admitting, Jadunandan Prasad as his landlord, the original defendant contended that he paid rent till October, 1984 but rent receipt was not given to him either by the original landlord or after his demise by Harish Chandra Gupta. Therefore, the defendant tendered rent in terms of Section 4 of the West Bengal Premises Tenancy Act, 1956 but the money order was not accepted by the landlord and he started depositing rent in the office of the Rent Controller, Calcutta; after the demise of Jadunandan Prasad the rent was tendered to his legal heirs but it was not accepted in his additional written statement. The defendant stated that he undertook certain repair work in respect of suit property which was necessitated due to normal wear and tear as the landlord did not repair the suit property. After the demise of original defendant, during pendency of the suit his legal heirs and successors were substituted.

4. Learned Trial Court after considering the evidence on record was pleased to pass the decree for recovery of Khas possession by evicting the tenants from the suit property.

5. The defendants challenged the decree passed by learned Trial Court in an appeal being Title Appeal No. 51 of 2014 and learned Appellate Court was pleased to reverse the judgement of learned Trial Court. Hence this second appeal.

6. Mr. Asit Baran Raut, learned Counsel for the appellant submits that learned First Appellate Court failed to appreciate the evidence on record and the judgement impugned is the outcome of absolute misreading of evidence, both oral and documentary. Drawing my attention to the Exhibit-11 a letter written on behalf of Chhotey Lal Modi by his lawyer Mr. Premes Kumar Sur, Mr. Raut submits that Chhotey Lal Modi in the said letter had been depicted as monthly tenant in respect of one shop room on the ground of suit house i.e. 7 Raja Raj Krishan Street, P.S. Bortala, Kolkata-700006. Exhibit-4