Biswajit Basu, J
1. The revisional application under Article 227 of the Constitution of India is at the instance of the tenant/defendant in suit for recovery of possession
under the provisions of Section 6 of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as ‘the said Act’ in short) and is
directed against the Order No.18 dated July 13, 2018 passed by the First Court of learned Civil Judge (Junior Division), Howrah in Title Suit No. 143
of 2010.
2. The learned Trial Judge by the order impugned in the present revisional application dismissed an application filed by the defendant/tenant under
Section 7(2) of the said Act, holding that the dispute raised in the said application as to the existence of relationship of landlord and tenant between the
plaintiffs and defendant is sham and has also struck out the defence of the petitioner against delivery of possession for non-compliance of the provision
of Section 7(1) of the said Act.
3. It is now settled that in a suit for eviction under Section 6 of the said Act a dispute can be raised by the defendant by filing an application under
Section 7(2) of the said Act that there exists no relationship of landlord and tenant between the plaintiff and the defendant but in order to bring the said
‘dispute’ within the sweep of Section 7(2) of the said Act the dispute must not be sham. In other words the said dispute must be a bona fide
dispute. It is equally settled that the investigation as to the genuinity or correctness of the said ‘dispute’ is fact specific.
4. Let me now consider whether the Learned Trial Judge in the facts and circumstances of the present case is justified in holding that the
‘dispute’ raised by the defendant in the application under Section 7(2) of the said Act regarding the existence of a relationship of landlord-tenant
between the plaintiffs and the defendant is a sham dispute.
5. The issue involved in the present revisional application demands consideration of some averments of the plaint of the suit, relevant to the present
context. The plaintiffs in the plaint have claimed that they are the joint owners of the property comprised in holding no. 244, G.T. Road Police Station.
Bally, Dist. Howrah (hereinafter referred to as the ‘suit premises’ in short) and the defendant was a monthly tenant under the plaintiffs in
respect of one shop room of the suit property at monthly rent of Rs.60/-payable according to English calendar month. The rent was initially realised by
one Raghunath Prasad Boobna, a receiver appointed in Money Execution Case No. 23 of 1961 but now he has been discharged by the learned Civil
Judge, Second Court, Howrah. The defendant is a defaulter in payment of rent on and from January, 1989 and failed and neglected to pay the rent
inspite of repeated demand and requests. The said rate of rent of the suit shop room by operation of the provision of Section 17(4A) of the said Act
enhanced to Rs. 300/- per month. The said monthly rent of the defendant, according to the plaintiffs should have been Rs. 360/-. In addition to that the
defendant was also under legal obligation to pay monthly share of the tax being occupier’s share which comes to the tune of Rs. 37/- per month
and maintenance @ 10% of the rent which comes to Rs. 36/- per month. Thus, the defendant was under legal obligation to pay Rs. 433/- per month
by way of rent, monthly taxes and maintenance.
6. The defendant in the application under Section 7(2) of the said Act has claimed that the rate of rent of the suit shop room is Rs. 60/- per month.
The defendant by the said application denied the ownership of the plaintiffs over the suit premises and raised a dispute that no relationship of landlord
and tenant exists between it and the plaintiffs. The defendant in the said application sated, inter-alia, that it has never paid rent to the plaintiffs. Initially
the defendant had paid rent to Kamaladevi Chamaria and subsequently paid the said rent till the month of December, 1988 to one Raghunath Prasad
Boobna, receiver appointed in Money Execution Case No. 23 of 1961 by the Second Court of learned Sub-ordinate Judge, Howrah. Thereafter none
claimed rent from the defendant as such it could not pay the rent since January, 1989. The defendant by the said application prayed that if landlord and
tenant relationship between the plaintiffs and the defendant is found to be in existence, the defendant may be permitted to deposit the arrear rent since
the month of January 1989 and be also permitted to deposit the current rent month by month in the suit.
7. The plaintiffs in their written objection contended, inter-alia, that the defendant was a monthly premises tenant in respect of the suit shop room
under the learned receiver, Raghunath Prasad Boobna at a monthly rent of Rs. 60/- payable according to English calendar month up to the month of
July 2001 and thereafter by virtue of the provisions of the said Act, the said rate of rent was enhanced to Rs. 103/- per month for the period from the
month of August 2001 to June 2010. The said rate of rent was further enhanced as per the demand of the plaintiffs by the letter dated May 4, 2010 to
the tune of Rs. 433/- per month.
8. The said application under Section 7(2) of the said Act although was subsequently amended and the plaintiffs also filed their additional written
objection to the said amended application under Section 7(2) of the said Act but the said amendment and the said written objection thereto are not
relevant for the purpose of deciding the issue involved in the present revisional application.
9. Mr. Banerjee, learned advocate appearing on behalf of the petitioner submits that admittedly one Raghunath Prsad Boobna was appointed as
receiver of the suit premises in the Money Execution Case No. 23 of 1961 by the Second Court of the learned Sub-ordinate Judge, Howrah and the
said receiver collected the rent of the suit shop room from the defendant till December, 1988. Thereafter neither the said receiver nor any person
claiming himself as the landlord demanded the rent of the suit shop room from the defendant. He submits that the plaintiffs in the plaint have simply
claimed that they are joint owners of the suit premises but the defendant since in it’s application under Section 7(2) of the said Act has denied the
ownership of the plaintiffs over the suit premises, it is incumbent upon the plaintiffs to prove their title over it but the plaintiffs have not made any
attempt to substantiate their said claim.
10. He further submits that the defendant never paid rent to the plaintiffs and in view of the specific dispute being raised by the defendant regarding
the existence of landlord and tenant relationship between the plaintiffs and the defendant, the plaintiffs are obliged to establish their entitlement to
receive the rent from the defendant being the landlord. He argues that the learned Trial Judge without appreciating the attending circumstances of the
said dispute, raised by the defendant has erroneously held that the said dispute is sham and has wrongly shifted the onus upon the defendant to prove
who is it’s landlord.
11. Mr. Banerjee, placing reliance on the decision of the learned Single Judge of this Court in the case of MAHESH KUMAR AGARWALLA VS.
SM. SARASWATI DEY reported in 1979 (2) CLJ 292 contends that so long the dispute raised by the defendant as to the existence of landlord tenant
relationship between the plaintiffs and the defendant is not decided, the defendant is not liable to comply with the provisions of Section 7(1) of the said
Act. He therefore submits the learned Trial Judge has exercised jurisdiction not vested in him in striking out the defence of the defendant against
delivery of possession of the suit shop room for the non-compliance of the provisions of Section 7(1) of the said Act.
12. Mr. Chatterjee, learned advocate for the plaintiffs/opposite parties, responding to the argument of Mr. Banarjee submits that the defendant in
it’s application under Section 7(2) of the said Act has admitted payment of rent to the receiver up to the month of December 1988. The defendant
in the said application has further admitted that prior to the receiver the defendant used to pay rent to Kamala Devi Chamaria, the predecessor-in-
interest of the plaintiffs but the defendant after the alleged refusal of the said receiver to accept rent, neither made any attempt to make payment of
the said rent to the said Kamala Devi Chamaria, nor resorted to the provisions of Section 21 of the said Act to deposit the rent with the rent controller.
The defendant instead, after institution of the said suit is questioning the title of the plaintiffs over the suit property which the defendant being a tenant
is not entitled to, in view of the embargo envisaged under Section 116 of the Evidence Act, 1872.
13. Mr. Chatterjee by referring to a letter of the constituted attorney of the plaintiffs being Exhibit ‘F’ further submits that by the said letter
dated May 4, 2010 the defendant was intimated about the acquisition of title by the plaintiffs over the suit property and was requested to pay rent to
them, therefore, according to him the defendant was aware about the title of the plaintiffs over the suit property, under such circumstances the denial
of the title of the plaintiffs in respect of the suit property by the defendant is totally mala fide and the dispute raised by it regarding the existence of
landlord tenant relationship between the plaintiffs and the defendant is sham on the face of it.
14. He concludes by submitting that the dispute raised by the defendant in the said application under Section 7(2) under the said Act is not at all bona
fide in as much as the plaintiffs have acquired title over the suit premises being the heirs of the admitted landlady of the defendant, Kamala Devi
Chamaria, therefore, the Learned Trial Judge has rightly dismissed the said application under Section 7(2) of the said Act holding the said dispute as a
sham one.
Heard learned advocate for the parties and perused the materials on record.
15. The application under Section 7(2) of the said Act although was filed out of time but delay in the filing of the said application was condoned by the
learned Trial Judge vide order no. 22 dated March 19, 2012.
16. On perusal, it appears that the plaintiffs in the plaint of the suit have not depicted the clear picture of acquisition of their title over the suit premises.
The plaintiffs are not claiming that they are the first decree owner of the suit premises. The plaintiffs are admittedly not the inducting landlords of the
defendant. The defendant also never paid rent to the plaintiffs admitting them as it’s landlord. Under such circumstance, particularly when the
defendant has raised a specific dispute with regard to the existence of a landlord and tenant relationship between it and the plaintiffs, it is incumbent
upon the plaintiffs to disclose as to how they have become owner of the suit premises, at least in the written objection to the application under Section
7(2) of the said Act.
17. The plaintiffs in paragraph 6 of the said written objection has stated that as a matter of fact the defendant was the monthly premises tenant in
respect of this suit shop room under the learned receiver viz Raghunath Prasad Boobna at a monthly rent of Rs. 60/- per month and thereafter by the
operation of the provisions of said Act the said rate of rent was enhanced to Rs. 103/- per month from August 2001 to June 2010 and on the discharge
of the said receiver on February 10, 2009 by virtue of an order passed by the learned Civil Judge (Senior Division), Second Court, Howrah, in Money
Execution Case No. 23 of 2009, the plaintiffs have become joint owners of the suit property.
18. The plaintiff no. 2 Shri. Ashok Kumar Jalan, deposed as O.PW-3 in course of the hearing of the said application under Section 7(2) of the said
Act. The said witness at paragraph nos. 4 and 5 of his examination-in-chief on affidavit has detailed the acquisition of right, title and interest of the
plaintiffs over the suit premises. The said paragraphs are of much importance in the present context as such quoted below:-
“4. I state on oathe that we the plaintiffs are the joint owners of the property comprised in Bally Municipal premises No. 244, G.T. Road,
(previously 413/59, G.T. Road) P.O. Liluah, P.S. Belur (formerly Bally)
District Howrah. In fact, our predecessor -in-interest Satyanarayan Chamaria was the original owner of the suit holding. The said Satyanarayan
Chamaria was entangled in prolonged litigation due to monetary loan taken from Ajit kumar Dutta who obtained the money decree from Hon’ble
High Court at Calcutta. The money decree, could not be satisfied and was ultimately transferred to the then Ld. Cout of 2nd Subordinate Judge at
Howrah for execution,(vide Money Execution Case No. 23 of 1961) and the suit holding was attached in the said execution cases. Subsequently
Satyanarayan Chamaria died in the year 1961 and in his place his mother Smt. Kamala Devi, wife Smt. Ginia Devi and daughter Smt. Lila Devi were
substituted and on the death of Smt. Kamala Devi and Smt. Ginia Devi their legal heir i.e. the plaintiff No. 1 viz; Amit Kumar Chamaria was
substituted and on the death of Smt. Lila Devi her legal heir Ashok Kumar Jalan i.e. myself was substituted both as Judgement Debtors. On the other
hand said Ajit Kumar Dutta assigned his right of decree in favour of Sri Raghunath Prasad Boobna in the year 1964. Subsequently within a very short
period said Sri Raghunath Prasad Boobna was appointed as Receiver by the Ld. Court of 2nd Sub- ordinate Judge at Howrah in the abovenoted
Money Execution Case No. 23 of 1961 by order dated 28.08.1964 and since then Mr. Boobna started to collect rent from the tenants of the suit
holding including the present defendant. Subsequently Raghunath Prasad Boobna assigned his right of decree in favour of Gouri Shankar Dubey who
was thereafter substituted as decree holder in the Money Execution Case No. 23 of 1961. Ultimately the said Money Execution Case No. 23 of 1961
was compromised between parties on full satisfaction of the decree and order of attachment was recalled and Receiver was relieved vide order dated
10.02.2009. The certified copies of relevant orders passed by Ld. 2nd Sub-ordinate Judge in Money Execution Case No. 23 of 1961 from 02.07.2008
upto 10.02.2009 along with compromise petition are already filed and have been already marked as Exhibit No. ‘C’.
5. Finally in view of the execution case, being disposed of upon full satisfaction on the basis of lawful compromise reached in between the contesting
parties, the absolute, right, title and interest of the present plaintiffs together with all powers and authorities legitimate to the plaintiffs/landlords
were/are revived. In support of my contention, Municipal Tax Receipt issued in the name of the plaintiffs by Bally Municipality has already been filed
and marked as Exhibit No. ‘B’.â€
19. The plaintiffs in the written objection to the application under Section 7(2) of the said Act have not narrated the facts which the plaintiff no.2 being
as O.PW-3 has stated in his examination-in-chief on affidavit, notwithstanding lack of averment in the said written objection, documents referred to in
paragraph no.4 of the examination-in-chief O.PW-3 have been proved in course of the hearing of the said application and have been marked exhibits.
Be that as it may, in view of the said statements of the said witness regarding acquisition of title of the plaintiffs over the suit property the dispute
raised by the defendant in it’s application under Section 7(2) of the said Act regarding entitlement of the plaintiffs to receive rent of the suit shop
room from the defendant as the landlord cannot be brushed aside terming the said dispute as a sham one.
20. No doubt Section 116 of Indian Evidence Act, 1872 precludes a tenant from denying the title of the landlord but the said provision of the said Act
is not an embargo for the tenant to deny derivative title of the landlord. It appears from the paragraphs.4 and 5 of the examination-in-chief of the
plaintiff no.2 on affidavit that they are claiming derivative title over the suit premises which can very well be challenged by the defendant.
21. The plaintiffs by the Exhibit ‘F’, the letter dated May 4, 2010 demanded rent from the defendant stating that on the satisfaction of the
decree in the said Money Execution Case No. 23 of 1961 they are entitled to realise rent from the defendant without any further disclosure of their
acquisition of title over the suit premises. The said letter neither possesses the character of a ‘letter of atonement’ nor the defendant responding
to the said letter has paid rent to the plaintiffs admitting them as it’s landlord. Therefore, the said letter is of no relevance for the purpose of
holding that the dispute raised by the defendant in the application under Section 7(2) of the said Act is a sham dispute.
22. It further appears from the written objection of the plaintiffs to the application under Section 7(2) of the said Act that the rate of rent is also under
dispute and such dispute is required to be resolved before the defence of the defendant against delivery of possession of suit shop room is directed to
be struck out for non-compliance of the provisions of Section 7(1) of the said Act.
23. That apart the plaintiffs are claiming title over the suit premises by virtue of an order dated over dated February 10, 2009 passed by the Second
Court of learned Civil Judge (Senior Division), Howrah recording satisfaction of the money decree put into execution vide Money Execution Case No.
23 of 1961. The plaintiffs are alleging that the defendant is defaulter in payment of rent since January 1989. It appears from the examination-in-chief
of the plaintiff no. 2 on affidavit being O.PW-3 that prior to February 10, 2009 the original holder of the said money decree Ajiit Kumar Dutta assigned
his right under the decree in favour of Raghunath Prasad Boobna in the year 1964. The said Raghunath Prasad Boobna was appointed as a receiver
in the said Money Execution Case No. 23 of 1961 and he subsequently assigned his right under the said decree in favour of one Gourishankar Dube
who thereafter substituted in the said money execution case as decree holder. Therefore, whether the plaintiffs are at all entitled to the rent of the suit
shop room for the period between January, 1989 to January, 2009 is also required to be investigated.
24. In the facts and circumstances of the present case the disputes raised by the defendant in the application under Section 7(2) of the said Act are
required to be properly addressed and determined and till such determination is made the defence of the defendant against delivery of possession
cannot be struck out as has rightly been submitted by Mr. Banerjee, placing reliance on the decision of this Court reported in 1979 (2) CLJ 292
(supra).
In view of the discussion made above the order impugned is set aside. C.O. 2837 of 2018 is disposed of by directing the learned Trial Judge to decide
the application under Section 7(2) of the said Act afresh, in accordance with law, in the light of the observations made herein above.
However, there will be no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
