ANIL KUMAR GUPTA v. KAUSALYA DEVI MODI

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 3 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, the prescribed application form for depositing of rent under Section 21 of the West Bengal Premises Tenancy Act, 1956, filed by Chhotey Lal Modi since deceased, demonstrates that Chhotey Lal Modi introduced himself before the Rent 4 Controller as a premises tenant in respect of one shop room on the ground floor of the premises no. 7 Raja Raj Krishan Street, Kolkata-

700006. But subsequent thereto learned Commissioner, who was engaged by learned Trial Court submitted his report before the learned Trial Court indicating that the defendants/tenants have been occupying rooms, which unerringly supports the claim of plaintiff/appellant about the addition and alteration caused by the defendants/respondents. Mr. Raut further submits that on that ground alone learned First Appellate Court ought to have affirmed the well reasoned judgment of learned Trial Court.

#7. Refuting such contention of Mr. Raut, Mr. Mainak Bose, learned Senior Counsel for the respondents submits that the plaintiff/appellant who claimed to have acquired title over the suit property by virtue of a deed of gift, cannot be held to be the thika tenant in respect of the property. Therefore, he cannot be held to be the landlord and the suit cannot be said to be maintainable in view of Sub-Section 4 of Section 5 of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

#8. Drawing my attention to Sub-Section 4 of Section 5, Mr. Bose submits that in order to transfer the thika property by way of gift the thika tenant(s) is under obligation to obtain prior permission of the competent authority. In the event of any transfer in violation of the statutory provision as laid down under Section 5 (4) of the said Act would attract the provision of Sub-Section 2 of Section 6 which contains a penal provision. Therefore, such transfer should be held to be void and in support of his contention Mr. Bose relied upon a decision pronounced in ASHA JOHN DIVIANATHAN VS. VIKRAM MALHOTRA & ORS. 5 reported in 2021 SCC Online SC 147 and ALGEMENE BANK NEDERLAND NV VS. SATISH DAYALAL CHOKSI reported in AIR 19990 Bom 170.

#9. It is further submitted by Mr. Bose that learned Trial Court appointed Engineer Commission but he did not hold inspection in terms of the direction given by learned Trial Court. In the pleadings the defendants/respondents categorically stated that at the time of induction there was a dwarf wall (wall short in height) in the suit room dividing the room into two parts and there was a concrete loft. The Engineer Commission being an expert ought to have determined the age of such alleged construction which would lend support to the case of the appellant, but no such step was taken. Therefore, it cannot be said that the defendants/respondents undertook any work that would expose them to threat of eviction.

#10. According to Mr. Bose, there could be numerous cubicles temporary in nature, such compartments cannot consider to an act of addition and alteration to justify order of eviction of the suit premises. Though substantial question of law was formulated touching the question of legality of the notice of eviction, at the time of argument however, this point was not pressed by either of the parties. The notice to quit Exhibit- 9 demonstrates that it was issued on 28th November, 1985 and the defendant/tenant was asked to quit and vacate the suit premises by 31st January, 1986 which was returned as ‘not claimed’. It goes without saying that not claimed postal article means to good service.

#11. Hon’ble Apex Court in MADAN AND CO. VS. WAZIR JAIVIR CHAND