Protection under tenancy laws for non-residential tenants is limited to five years post-death of the original tenant; improper classification of suit leads to jurisdictional dismissal.

JUDGMENT :

Krishna Rao, J.

1. The defendant has filed the present application being G.A. No. 9 of 2023 in C.S. No. 220 of 2021 praying for rejection of plaint. The plaintiff has filed the suit against the defendant for eviction, recovery of khas possession and mesne profit.

2. The contention raised by the defendant in the present application is that the suit filed by the plaintiff is a commercial suit but has filed in the Non-Commercial Division. The defendant is running business in the suit premises. It is also the contention of the defendant that the suit property is for non-residential purpose and under the provisions of Section 2(g) of the West Bengal Premises Tenancy Act, 1997, protection is granted only for residential purpose. It is also the contention that the husband of the defendant, namely, Prabir Kumar Kundu left behind his wife, the defendant herein, one son and one daughter but the plaintiff has not made all the legal heirs of Prabir Kumar Kundu as defendants.

3. On 28th April, 1993, the husband of the plaintiff and the plaintiff have jointly had purchased the suit properties. The husband of the plaintiff died on 5th June, 2008 leaving behind the plaintiff as his only legal heir and by way of inheritance and succession, the plaintiff has become the sole and absolute owner of the suit property.

4. Mr. Meghnad Dutta, Learned Advocate representing the plaintiff submits that one Satya Ranjan Kundu was the monthly tenant with respect to the suit property. Satya Ranjan Kundu died on 24th September, 1998 and after his death, the tenancy was transferred in the name of his wife, Smt. Durga Rani Kundu. Durga Rani Kundu died on 27th May, 2015 leaving behind her son, namely, Prabir Kumar Kundu as her only legal heir and reprehensive.

5. Mr. Dutta submits that due to the death of the original tenant, Durga Rani Kundu and upon expiry of the period of five years from the date of death of the original tenant, the tenancy has come to an end and the defendant being the daughter in law of the original tenant, on and from 27th May, 2020 has no right to occupy, possess and enjoy the suit property.

6. Mr. Dutta submits that the plaintiff has sent notice calling upon the defendant to handover and deliver up peaceful, vacant and khas possession of the suit property to the plaintiff but inspite of receipt of notice, the defendant failed to vacate the premises and to hand over vacant possession of the suit properties to the plaintiff. He submits that instead of vacating the premises, the defendant filed a false and fictitious suit against the plaintiff for declaration and permanent injunction before the Learned City Civil Court at Calcutta. He submits that the defendant has no right in any manner whatsoever to use, occupy and possess the suit property.

7. Mr. Dutta in support of his submissions relied upon the following judgments:

i. Nasima Naqi vs. Todi Tea Company Ltd. and Others reported in 2019 SCC OnLine SC 1601.

ii. Eldeco Housing and Industries Limited Vs. Ashok Vidyarthi & Ors. reported in 2023 SCC OnLine SC 1612.

8. Per contra, Mr. Amitava Mukherjee, Learned Advocate representing the defendant submits that sometimes in the year 1952, the father-in-law of the defendant, namely, Satya Ranjan Kundu was inducted as tenant with respect to one shop room measuring an area of 160 Sq.Ft. (20ft.x 8ft.) together with adjacent godown measuring an area of 30 Sq. Ft. (20ft. x 1 ½ ft.) and just opposite of that another shop room of (wooden structure) measuring an are