Samir Kumar Chatterjee v. Hirendra Nath Ghosh AIR 1992 Cal 129
Cases referred :
Dilbagrai Punjabi v. Sharad Chandra [AIR 1988 SC 1858] Para 9
Bhairab Chandra Nandan v. Ranadhir Chandra Dutta [AIR 1988 SC 396] Para 9
Judgement
AJIT KUMAR NAYAK J. – 2. The case of the plaintiff/respondent, in short, was that he was a monthly tenant in respect of entire premises No. 19, Gopal Chandra Chatterjee Road at a monthly rental of Rs. 70/- under Taraknath De and his brothers. On being approached by the defendant, in need of accommodation in September, 1979, the plaintiff/respondent allowed the defendant/appellant to live in one room of the suit premises for a period of four months from September 1979. On compassionate ground as a licensee, without any licence fee or consideration whatsoever, and on his refusal to vacate it after the expiry of the said period of four months, the respondent revoked his licence and brought this suit.
3. The defendant contested the suit by filing a written statement. His defence, in short, was that he was a tenant or for the matter of that, a sub-tenant under the plaintiff who was a tenant at a monthly rental of Rs. 20/- payable according to English calendar month and not a licensee at all. It was alleged that the father of the defendant was also a tenant in the suit premises and that the plaintiff accepted the defendant as a tenant in respect of the said room only after taking a sum of Rs. 2,000/- as advance subject to adjustment against the rent payable by the defendant/appellant. It was alleged that as because the defendant/appellant demanded rent receipt the plaintiff started harassment and also demanded higher rate of rent which the appellant refused to pay.
4. The trial Court, on a consideration of the materials on record, held that the defendant was a licensee under the plaintiff and decreed the suit. Being aggrieved the defendant/appellant preferred an appeal before the lower appellate Court and the judgment and decree of the trial Courts were also affirmed by such Court. Defendant/appellant has thereafter preferred this second appeal on, among other grounds, that finding of both the Courts below is manifestly unjust and illegal as both the Courts below mis-directed themselves in not taking into account important evidence bearing on the disputed issue and that the same is also perverse.
5. Judgment of the lower appellate Court has been assailed before this Court on several grounds. Firstly, it has been urged that both the Courts below misplaced the onus of initially proving that the burden lies on the plaintiff to show prima facie that the defendant was a licensee. Secondly, it has been urged that both the Courts below mis-directed themselves by not taking into account very important and material evidence bearing on the status of the defendant as to whether he was a licensee or a tenant and thereby came to a wrong finding regarding the status of the defendant. Thirdly, it has been urged that such finding regarding the status of the defendent/appellant as a licensee is unjust also as the ―essential ingredients‖ necessary for finding of such fact have not been found by both the Courts below.
6. As against this, Mr. Bhattacharyya, appearing on behalf of the plaintiff/respondent, contended that findings of both the courts below regarding the status of the defendant as a licensee is a concurrent finding of fact and should not be ordinarily interfered with in this second appeal, as the scope of this appeal in terms of the provisions of Section 100 of the Code of Civil Procedure, is to be confined only to substantial question of law. It is, therefore, urged that as because the defendant-appellant has been found by both the courts below to be a licensee, the same should not be ordinarily interfered with by this Court as it does not involve substantial question of law.
7. Before we enter into the merits of this case on the questions as addressed by the learned Advocates of both sides, let us look into the admitted facts of this case. Undisputably, the plaintiff was a tenant in respect of the entire suit premises, i.e., 19, Gopal Chandra Chatterjee Road, at a monthly rental of Rs. 70/-. It is also an undisputed fact that the defendant/appellant is actualy occupying a room of such premises having the facility of a kitchen together with the further facility of joint user of toilet of such premises. Undisputedly also, the status of the plaintiff/respondent was that of a tenant at the time the defendant was allegedly inducted as a licensee in September, 1979. It is further undisputed that the plaintiff/respondent became the owner of this premises by virtue of his purchase by a registered deed dated 22nd April, 1985, from the previous landlord. So the fact remains, that the plaintiff/respondent was still a tenant and not the owner of the suit premises at the time the suit was instituted in the year 1981.
8. Be it stated here at the very outset that in a case of concurrent findings of fact by both the courts below, the scope of interference by the High Court is very limited and the High Court should not interfere with the concurrent findings of facts of the Courts below on the ground of perversity unless the court concerned misdirected itself in coming to its finding on the question of fact. Such concurrent finding of fact, however, as observed by the Supreme Court can be interfered with only where it is manifestly unjust or where the essential ingredients for such a finding of fact have not been found by the Courts below. It is true, in an ejectment suit a finding on the question whether the defendant is a tenant or a licensee, the finding of the lower appellate Court on a consideration of the evidence is a finding of fact. Reference may be made in this connection to the decision of the Supreme Court reported in AIR 1963 SC 361. However, it has also been observed by the Supreme Court in another decision reported in AIR 1989 SC 1141 that the question whether there is a tenancy or sub-tenancy or licence or parting with possession in any particular case, must depend upon the quality of occupation given to the licensee or the transferee. Of course, in the case referred to, dispute arose regarding the occupation of a holder to display his holding and as such the vital question in that case was whether occupation itself will amount to a question of tenancy or that of a licence. Mere occupation is not sufficient to infer either sub-tenancy or parting with the possession. Facts of the instant case are somewhat different from the one referred to, as because parting of possession in favour of the defendant/appellant is an undisputed fact, though it is claimed on behalf of the plaintiff/respondent that the respondent was in actual legal possession of the suit property. In other words it is sought to be urged and emphasised that the possession of the defendant/appellant was not exclusive possession in this case. It is, therefore, urged that although the defendant/appellant was permitted to occupy a room, it was the possession of a licensee.
9. In view of the contentions of the learned Advocate for the defendant/appelant, it will be necessary to see as to whether the possession which was given to the defendant/appellant was that of a licensee or that of a tenant. Further, in view of the points raised by the learned Advocate for the defendant/appellant, the entire relevant evidence on record is to be considered to see that the Courts below considered all such important evidence having direct bearing on the disputed issue. If, on such examination we find that the courts below made such a mistake, then in that case this Court is fully authorised to set aside such finding. To make it clear once again, it is true that High Court, while hearing second appeal under Sec. 100, C. P. Code, has not the jurisdiction to examine the evidence and reverse or reject the conclusion reached by the first appellate Court. But we should also bear in mind that it has the power to interfere with such finding, when the lower appellate Court made a mistake of the nature as stated, and can decide the issue, treating such finding as unwarranted and then it can be looked into as a substantial question of law. If any authority is needed on this point even after the amendment of 1976, we may refer to the decision reported in Dilbagrai Punjabi v. Sharad Chandra [AIR 1988 SC 1858] and also the decision of the Supreme Court reported in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta [AIR 1988 SC 396].
10. In the case of this nature where the plaintiff alleges that the defendant/appellant is a licensee and where the defendant/appellant asserts that he is a tenant, the initial onus is upon the plaintiff/landlord to prove that the defendant was inducted as a licensee. The question of onus, however, loses its importance once the parties enter into the evidence. Once the plaintiff/respondent tenders evidence showing that the defendant was inducted as a licensee, onus shifted upon the defendant to show that his status is that of a tenant and not a licensee as claimed by him.
11. On a perusal of the judgments of both the courts below, unfortunately we find that both the Courts below, misplaced the onus on the defendant/ appellant to prove his case that he was a tenant and not a licensee. Admittedly, there is no document of lease or agreement of tenancy between the parties. Sub-letting has not been defined in the Rent Act or in other words, in the Premises Tenancy Act. There is no paper showing payment of rent by the defendant/appellant to the plaintiff in respect of the suit room. Nor there is any paper whatsoever showing payment of a sum of Rs. 2,000/- by the defendant/appellant either as advance or as security money. But at the same time, there is also no good evidence adduced on the part of the plaintiff/respondent showing that the defendant/appellant was inducted as a licensee in September, 1979. Admittedly, nobody was present at the time of such induction of the defendant/appellant as a licensee. Barring the uncorroborated testimony of the plaintiff/respondent there is no evidence whatsoever of induction of the defendant/appellant as a licensee for a period of four months in the disputed room of the suit premises. A proper scrutiny of the evidence on record in this case would be necessary in view of the manner of approach made by both the courts below with regard to the evidence to determine the status of the defendant/appellant. We find from the admitted evidence of the plaintiff/respondent (P.W.1) that he did not know the father of the defendant. There is no evidence that the parties are related to each other or that they had any previous acquintance. Plaintiff‘s case in this regard is short and simple that he allowed the defendant/appellant to stay in, though for a specific period as the defendant/appellant was in need of such accommodation. It seems unlikely when the parties are not related to each other or there is not even any acquintance with each other, one party would go to the extent of accommodating the other by way of granting gratuitous licence to have exclusive possession of the particular premises without any consideration whatsoever. This is against normal human conduct or experience, unless of course the plaintiff/respondent can show it otherwise. It is true that the plaintiff/respondent has led evidence, both oral and documentary, to show that the defendant/appellant came into the premises only in September, 1979 and not before that as it is the case of the defendant/ appellant. We have already seen that it is the specific defence case that his father was there in that house for a long time and that after demise of his father in 1970, he was accepted as a tenant at a monthly rental of Rs. 20/- and further on a payment of Rs. 2,000/- as advance. So, the vital question for determination of the status of the defendant/appellant would be whether he was there in the suit premises since before the alleged induction in September, 1979. If we find positive evidence on record that he was there since before that time, it would demolish the case of the plaintiff/respondent that the defendant was inducted as a licensee only in September, 1979 and not before.
12. The trial Court started with this question on an analysis of the evidence led by the defendant and that too from a wrong angle; or in other words, he mis-directed himself in assessing the oral evidence led by the defendant/appellant on an assumption that no case of prior occupation before 1979, either by the defendant or by his father was made out in the written statement. We have already seen that the defendant made a specific case that his father Bhupati Chatterjee was occupying the suit premises as a tenant and after his death the defendant continued to occupy the same. Both the Courts below considered the same as a case not made out in the pleading itself. All the four witnesses examined by the defendant including the defendant/appellant himself were disbelieved and their evidence brushed aside on this sweeping assumption that no such case is made out in the written statement, though there is such a case in the written statement, itself. According to the trial Court, Tarapada Banerjee and Arun Sarkar were the witnesses who saw payment of rent to the plaintiff/respondent by the defendant. The trial Court observed that none of these two witnesses was examined by the defendant although they were alive. As a matter of fact Arun Sarkar was examined by the defendant as D. W. 3 who was private tutor in the family of Bhupati Chatterjee, father of the defendant/appellant in the same house 20/25 years ago, and he stated that he saw payment of rent by the father of the defendant to the plaintiff/respondent. D. Ws. examined by the defendant are also the neighbours living in close proximity to the disputed premises and as such they are expected to know and to be acquainted with the inmates of that house and to witness any payment of rent or otherwise or the relationship between the parties in dispute. On a careful perusal of the judgment of the trial Court it will appear that he placed no reliance upon the testimony of the witnesses examined by the defendant or the credibility of such witnesses in the context of their making statement that the defendant‘s father was also there in the suit premises and the court below assumed it to be a case not made out in the written statement itself. In other words, he disbelieved the testimony of such witnesses, as if the same was contrary to the case made out in the written statement.
13. I have gone through the written statement very carefully to find that there is actually such a case in the written statement. Both the courts below made this apparent error in not looking properly into the written statement and, therefore, mis-directed themselves in assessing the oral evidence adduced by the parties. Therefore, it can be said that both the Courts below, while recording their finding regarding the status of the defendant/appellant, acted on an assumption not supported by evidence and failed to consider the oral and also the documentary evidence in coming to such finding.
14. Coming to the evidence of the witnesses examined by the plaintiff, we have already seen that the plaintiff admitted that he did not know the father of the defendant/appellant and he could not say if the defendant‘s father was the tenant in the suit premises. He did not enquire admittedly about the antecedents of the defendant when he was inducting him as a licensee. Admittedly, the defendant was given not only a room, but also a kitchen and the facility to use the toilet and the common tap water. Thereby, exclusive possession of the portion of the suit premises was given to the defendant. There is nothing to show that the plaintiff/landlord retained legal possession of the same in the sense allowing the defendant/tenant to occupy it only as a licensee or an invitee for a period of four months. The other witness (P.W.2) was examined by the plaintiff to prove that the defendant/appellant was a tenant in their house, i.e., in the house of P.W. 2, since before his occupation of the suit premises as a licensee. In other words, P.W. 2 was examined to prove that the defendant/appellant was living as a tenant in their house, and, was therefore, living elsewhere than in the suit premises before September, 1979. If there is convincing evidence on record to show that really the defendant was living elsewhere, then in that case the defendant will have no case as a tenant in the suit premises. On a scrutiny of the evidence of P.W. 2. we find that he is completely an interested witness and admitted to have come to the dock at the request of the plaintiff, as his father‘s friend and thereby brought the rent counterfoils which he was requested so to do. He did not know the defendant‘s father or where he lived. P.W. 2 cannot say when the defendant was inducted as a tenant in their house in 5, Sashibhusan Basak Lane. He cannot say in his evidence how old he was when the defendant was inducted as a tenant in their house, although he says he used to collect rent when the defendant was inducted as a tenant.
15. P.W. 3 is apparently an interested witnesses as admittedly he is a friend of the plaintiff/respondent. It is true, he was once a tenant in this house, but he left it long ago and purchased a house site and built a house in the name of his wife away from this place, although he claims that he shifted from this house in 1966. As a matter of fact we find that he purchased the house site in which, he says, he built a house long before.
16. Next, turning to the documentary evidence on record, the plaintiff has placed much reliance on the rent counterfoils produced by P.W. 2. Genuineness of such rent counterfoils and also the factum of such alleged tenancy right in the said house, have been challenged on behalf of the defendant/appellant. We have already seen that P.W. 2. as the son of the friend of the plaintiff/respondent was requested to bring those rent counterfoils and he admittedly produced the same on such request. Allegedly, such rent counterfoils, at least two of the rent counterfoils are said to bear the initial of the defendant/appellant showing payment of rent when he was supposed to be occupying the said premises. The trial Curt compared the said initials with the admitted signature of the defendant put in the deposition sheet. The defendant has already categorically denied that either he was a tenant in the said premises or that he ever paid rent to the father of the P.W. 2. or that the rent counterfoils (Exts. 7 and 7 (a)) bear his initial or signature. I am at a loss to understand as to how the trial Court could come to the conclusion that the signatures are identical or of the same person. A casual look at the initials contained in Exts. 7 and 7 (a) will show that they are completely distinct and different from those admitted signatures and the disputed one is extremely hazardous as has been held by this Court as well as by the Supreme Court. It is with utmost caution that such comparison is to be made and a finding is to be arried at on that basis. In the context of unreliable nature/of the oral evidence P.W. 2, it will be all the more risky to rely upon such rent counterfoils containing suspicious initials, far less proving convincingly that the defendant/appellant was a tenant in that building, namely, 5, Sashibhushan Basak Lane before September, 1979. It is true, the plaintiff has produced the certified copy of the death certificate showing that in 1970 the defendant‘s father Bhupati Chatterjee‘s address, as given therein, is other than the disputed premises. But such noting of address as appearing in the death certificate has been said to be incorrect one by the defendant (D.W. 2) in his evidence. No doubt, this entry in the death certificate goes to show that the defendant‘s father was at least living in a different place at the time of his death. But there is overwhelming evidence on record to show that the defendant was living with his family in the suit premises even long before his induction as licensee in 1979. The trial Court has placed no reliance on the documentary evidence adduced by the defendant showing his residential address in the suit premises. Even, if we disbelieve the other documents, (Exts. B series) the postal receipts, (Ext. C series), postcards (Ext. D), inland letter (Ext. E), the transfer certificate, cannot be lighly brushed aside in the manner as the trial Court has done and dittoed by the court of appeal below. There will be no manner of doubt that at least some of these were addressed to the defendant or his mother before 1979 showing thereby that they were living in this house before the alleged induction as a licensee by the plaintiff. Postal marks clearly show the years before 1979 and even in spite of the alleged interpolations the name of the defendant and the address are discernible. So also the original school leaving certificate by the defendant (Ext. E) showing that his address as long back as 1965 was given in this disputed premises and showing thereby that the defendant/appellant was living in this house since before 1979. All these speaks volumes of that the defendant/appellant was occupying such premises with the members of his family since before 1979. This can only be done not as a licensee, but in the capacity other than that as a licensee. If this prior occupation of the defendant is believed, it fits with the case of the defendant that no rent receipt was granted to him because the plaintiff/respondent was himself a tenant and that he would be liable to eviction for creating sub-tenancy. This is the specific case of the defendant and is borne out as such by the facts and circumstances of the case.
17. As already stated, the first court of appeal, also approached the whole case from a wrong angle misdirecting itself as that of the trial Court, in a way prejudicial to the interest of the defendant/appellant. In short, the appellate Court‘s judgment is also based on surmise and conjectures, as that of the trial Court. He simply brushed aside the documentary evidence adduced by the defendant/appellant as suspicious in nature and placed no reliance on the same without carefully examining the same and trying to arrive at a finding based on his independent judgment and reasoning. He simply dittoed and endorsed the finding of the trial Court that such documents were created for the purpose of this suit, without trying to weigh and assess the evidentiary value of the same. In that view of the matter, I am constrained to observe that the court of appeal below failed altogether to comply with the statutory provisions of Order 41, Rule 31 of the Code of Civil Procedure. The judgment of the appellate Court should not be the mere endorsement of the findings of the trial Court, not containing the reasons for the decisions arrived at by him independently of that of the trial Court.
18. So, in view of what has been discussed above, it is clear from the volume of oral and documentary evidence on record that the defendant/appellant was there in the suit premises by the plaintiff/respondent in September, 1979. When this fact is established convincingly, it fits in with the case of the defendant/appellant that he was there obviously in the capacity not attributed to him by the plaintiff/respondent. In other words, this fits in with the case of the defendant/appellant that he was there as a tenant and that this fact was not given a stamp of legality or authority as because the plaintiff/respondent‘s status was that of a tenant. No sub-tenancy was sought to be created, presumably to avert a suit for eviction to be filed by the landlord against the tenant. I find, therefore, that the plaintiff has failed singularly to prove his case of induction of defendant/appellant as license and the finding of the lower appellate Court based on that of the trial Court should be set aside as stated above.
19. The result is, the appeal is allowed. The judgment and decree of the court of appeal below are set aside and the plaintiff‘s suit is dismissed.
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