Asha Arora, J.@mdashThis appeal at the instance of the plaintiffs/appellants arises out of the judgment and decree dated 15/12/2010 passed by the learned Judge IVth Bench, City Civil Court Calcutta in Title Suit No. 757 of 2007.
2. The parties are referred to herein as they are arrayed in the suit.
3. The case made out by the plaintiffs in the aforesaid suit is that their predecessor in interest Amal Kanti Saha was a monthly tenant in respect of a flat comprising of three bedrooms, a kitchen and one bath-privy on the first floor of premises No. 437/B, Rabindra Sarani within P.S. - Jorabagan under the landlord Tapan Kumar Biswas. After the demise of the said Amal Kanti Saha, his wife and son who are the plaintiffs in the suit along with his daughter inherited the said tenancy. It is the further contention of the plaintiffs that during the lifetime of Amal Kanti Saha, the defendant being his brother was permitted to reside in the suit premises which is one room in the said flat as a licensee without any license fee. During the continuance of the tenancy the plaintiffs purchased the aforesaid flat from Tapan Kumar Biswas by a registered deed of conveyance dated 28/02/2005. According to the plaintiffs, the defendant''s licence in respect of the suit premises has been revoked by a notice dated 26/02/2007 which was sent to him by registered post with acknowledgement due. In spite of receiving the said notice, defendant failed to vacate the suit premises. Plaintiffs therefore filed the above mentioned suit for declaration and recovery of possession.
4. Defendant contested the suit by filing written statement wherein the material averments made in the plaint have been categorically denied. It is the specific case of the defendant that his father Khagendra Nath Saha since deceased took the tenancy in the name of his eldest son Amal Kanti Saha but all his three sons including the defendant were joint tenants in respect of the flat in question. It is also the contention of the defendant that the said flat is a debutter estate represented by the sole trustee and sebait Sm Lakshmi Devi. Disputing all other allegations in the plaint, defendant prayed for dismissal of the suit.
5. Parties led evidence in support of their respective claims. The Trial Court, after considering the oral and documentary evidence arrived at the finding that the plaintiffs are not entitled to the decree prayed for as they failed to prove their ownership in respect of the suit property. Accordingly, the suit was dismissed on contest with cost of Rs. 5000/-.
6. Being aggrieved, the plaintiffs preferred the instant appeal. At this juncture, it is significant to mention that despite service of notice, defendant/respondent did not appear to contest the present appeal.
7. Leading us through the impugned judgment, Mr. Chatterjee, learned Counsel for the appellants pointed out that after holding the defendant to be a licensee, the Trial Court erred in dismissing the suit on the ground that the plaintiffs could not prove their title in respect of the suit premises. Placing great reliance on the case laws reported in
8. Section 116 of the Evidence Act deals with estoppel against tenants and of licensees or persons in possession. It provides that "no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given". For the purpose of the instant case the learned Counsel for the appellants/plaintiffs laid stress on the second part of Section 116 of the Act relating to the estoppel between licensor and licensee. It mandates that a person who comes upon any immovable property by the licence of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such licence was given. Therefore the question before us is whether the defendant/respondent had acquired possession of the suit premises as licensee under the plaintiffs/appellants or as joint tenants with the plaintiffs as claimed by the defendant.
9. To substantiate their case the plaintiffs examined one witness namely, P.W. 1 Namita Saha who is the plaintiff No. 1 in the suit. Plaintiffs also produced in evidence some rent receipts (ext A series) relating to the period from 1993 to 2002 issued in the name of Amal Kanti Saha. The other documents relied upon by the plaintiffs are the registered deed of conveyance dated 28/02/2005 (ext 2), and a copy of Advocate''s letter dated 26/02/2007 (ext 3) addressed to the defendant. In her evidence P.W. 1 averred that her husband Amal Kanti Saha was a monthly tenant in respect of the flat on the first floor at premises No. 437/B Rabindra Sarani. P.W. 1 further stated that the defendant is the brother of Amal Kanti Saha and as he had none to look after him, her husband permitted the defendant to reside in one room in the said flat as licensee without any licence fee. We also get from the evidence of P.W. 1 that after her husband''s death on 22/02/1995 she and her one son and daughter jointly inherited the tenancy right in respect of the flat in question. The rent receipts (ext A series) support the claim of the plaintiffs that the tenancy in respect of the flat at 437/B Rabindra Sarani stood in the name of their predecessor in interest Shri Amal Kanti Saha. P.W. 1 emphatically denied the suggestion in cross-examination that her husband and the defendant were joint tenants in respect of the flat in question. In his cross-examination the defendant Shyamal Kanti Saha (D.W. 1) admitted that his elder brother Amal Kanti Saha took the suit property on monthly rent in May, 1968. He also conceded that the rent receipts filed by him (ext A series) are all in the name of his elder brother. Being quizzed in cross-examination D.W. 1 stated that he had no document to show that his father used to pay the rent in respect of the flat in question. D.W. 1 also admitted in his cross-examination that he had no document regarding joint tenancy right in respect of the said flat. D.W. 1 could not substantiate his contention on the point that he and his elder brother had joint business till 1988. D.W. 2 Krishna Saha and D.W. 3 Nilendra Bhusan Kundu have not been of any assistance to the defendant in proving his case. Defendant could not produce any iota of documentary evidence in support of his claim of joint tenancy with the plaintiffs. On the contrary, all the rent receipts produced by the parties (ext 1 series and A series) issued in the name of Amal Kanti Saha, lend corroboration and credence to the plaintiffs'' case that their predecessor in interest was the tenant in respect of the flat in question. The defendant''s claim that the tenancy was taken by his father Khagendra Nath Saha out of his own fund and that Amal Kanti Saha, the predecessor in interest of plaintiffs was a mere name lender is not sustainable in view of the Benami Transactions (Prohibition) Act, 1988. This apart, it is well settled that the burden of proving that a particular transaction is benami always rests on the person asserting it to be so. In the instant case defendant''s plea of benami could not be proved by any evidence. Hence it is not tenable.
10. It is clear from our foregoing discussion that the defendant was in permissive possession of the suit premises as a licensee. Therefore the second part of Section 116 of the Indian Evidence Act would be applicable in favour of the plaintiffs. In the case of
11. The decisions referred are clearly applicable to our present case. The above discussion leads to the conclusion that the Trial Court fell in manifest error in holding that the plaintiffs were obliged to prove their title to the suit premises. In the circumstances, we do not have the slightest hesitation in reversing the findings of the Lower Court and in decreeing the suit.
12. We accordingly allow the appeal, set aside the impugned judgment and decree in Title Suit No. 757 of 2007.
13. We direct the defendant/respondent to vacate the suit premises and deliver vacant and peaceful possession of the same to the plaintiffs/appellants within one month from this day in default of which the decree of eviction shall become executable.
14. C.A.N. 6872 of 2012 arising out of an application under Order 41 Rule 27 of the Civil Procedure Code not being pressed at the time of hearing of the appeal stands dismissed.
15. L.C.R. along with a copy of judgment shall be sent immediately to the Lower Court.
16. Urgent Photostat certified copy of this judgment if applied for, shall be supplied to the parties subject to compliance of requisite formalities.
