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Ajay Bangur & Others v/s B. Majumdar Samajpati & Sons Hotel Pvt. Ltd.

    APD. No. 41 of 2018 with CS. No. 263 of 2005

    Decided On, 16 August 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SOUMEN SEN & THE HONOURABLE MR. JUSTICE RAVI KRISHAN KAPUR

    For the Appearing Parties: Malay Kr. Ghosh, Sr. Advocate, Sarvapriya Mukherjee, Aniruddha Mitra, S. Sarawagi, Swarnendy Ghosh, Debdut Mukherjee, S.P. Brahmachari, Advocates.



Judgment Text

The Court: This appeal is directed against a judgment and decree dated 23rd February, 2017 in a suit filed by the appellants/plaintiffs for eviction of the defendant from the suit property.

This is the first suit filed by the plaintiffs against the defendant for illegal occupation of 350 sq. ft. approximately in the ground floor of the premises in question. The plaintiffs, subsequent to the dismissal of the suit, also filed a suit for eviction of the defendant from the suit premises with which we are not presently concerned with and we have been informed that the said suit is pending.

The plaintiffs are the absolute owners of the premises situated at 95A, Chittaranjan Avenue, Kolkata-700 073 (hereinafter referred to as the 'said premises'). The said premises consists of a three-storeyed building and comprises of an area of one bigha four cottahs of land. The defendant was initially the sole proprietorship concern of Mr. B. Majumdar in respect of central portion of premises (first and second floor together with terrace and ground room leading to the stairs). On 10th November, 1992, Sri B. Majumdar @ Sri B. Majumdar Samajpati requested the plaintiff trust to convert the tenancy in favour of M/s. B. Majumdar Samajpati & Sons Hotels Private Limited (hereinafter referred to as the "said company") with all rights and privileges attached thereto on and from 1st day of December, 1992 and the rent from December, 1992 would be payable by the said company to the trust. This was followed by a letter from the said company dated 18th November, 1992 whereby the said company had mentioned the terms and conditions on which their tenancy may be regularised and they may be allowed to continue with the old tenancy.

Incidentally, the directors of the said company are the six sons of the original tenant. As desired by the trustee, the terms and conditions for the new tenancy were executed by the company in a stamp paper and the said agreement was duly forwarded to the trustee. By a subsequent letter da

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ted 20th December, 1992, the defendant company clarified that although in the letter dated 18th November, 1992 the area of possession has been mentioned as "11 rooms in the first floor and 11 rooms in the second floor and two kitchen at top floor" which the defendant company had executed in good faith and belief on the basis of their long standing relationship, but in fact, for all practical purpose, the original tenancy covers "central middle portion of our above premises (1st and 2nd floor together with the terrace and ground room leading to the stairs)" in terms of the letter of the landlord dated 6th March, 1940 under the signature of Late Mr. Magneeram Bangur and since then the defendant had been in occupation of a four-storeyed independent central portion of the building including the top floor i.e. terrace having no access to any third party.

In view thereof, the defendant requested the plaintiff to treat the letter of 20th December, 1992 as a part of the letter dated 18th November, 1992 executed on a stamp paper and signed by the company. In reply to the aforesaid communication, the trust by a letter dated 24th December, 1992 confirmed that the area of possession and the right of access of the defendant shall include first and second floor and the top floor i.e. roof top/terrace and two rooms and one kitchen thereon including entrance on the ground floor and passage thereon leading to the stairs exactly in line with the possession and right of access of Mr. B. Majumdar, the original tenant. The plaintiff, however, on 11th May, 2004, inter alia, alleged that the defendant had broken the main entrance by putting up blocks and by the side of the staircase constructed an illegal reception office and are wrongfully occupying a portion of the roof of the said building.

Presently, the suit is only confined to the aforesaid allegations made in paragraph 4(i) and 4(ii) of the notice dated 11th May, 2004 and, accordingly, in this appeal we are required to examine as to whether on the basis of the pleadings and the evidence on record, the plaintiffs were able to establish any trespass by the defendant.

There is no dispute as to the creation of tenancy by way of transfer to the defendant company by the landlord plaintiffs. The original tenancy was created on 6th March, 1940 by a letter to which we have adverted to earlier. The said letter, inter alia, allows construction of some rooms on the back portion of the house and kitchen would be provided on the terrace for fulfilling the terms and conditions contained in the letter creating tenancy in favour of the defendant. The letter of the trust dated 11th May, 1978 shows that a portion of 1st and 2nd floor (11 rooms at each floor) and 2 kitchen at top floor making a total of 24 rooms were let out to the defendant by the plaintiffs. In a clarificatory letter dated 23rd June, 1981 the trust contended that although Sri B. Majumdar in a letter dated 11th May, 1981 has stated that he is in possession of total 24 rooms including 10 rooms in each of first and second floor and 4 rooms on the top floor, however, the wooden and iron net construction on top floor would not be treated as a room because it is not a pucca construction.

The extent of the tenancy can be culled out from a conjoint reading of the four documents, namely, the letters dated 6th March, 1940 and 10th November, 1992 both from Mr. B. Majumdar, the original defendant to the trust and subsequently, the letter dated 18th November, 1992 executed by the present defendant on stamp paper followed by a letter dated 20th December, 1992 read with the clarificatory letter of the trust dated 24th December, 1992. The extent of the tenancy would also appear from the letter dated 16th March, 1994 issued by the defendant to the Manager of the Trust highlighting the extensive and intensive repairs, replacements and reconstructions required to be made to restore the building and the tenancy. It is not in dispute that the building developed cracks and had suffered extensive damages caused due to the works being carried out underground by the Metro Railway. It would appear from the letter dated 15th May, 1993 Exbt.-15 addressed to the Manager, Gouri Devi Trust by B. Mazumdar Samajpati & Sons Hotels Private Limited that the defendant sought for permission from the plaintiffs/landlord for extensive and intensive repairs, replacements and reconstructions of the building severally and dangerously damaged due to depression of the front side of the building to the extent of 3 to 4 inches at least, causing serious problem of the basic balance/label of the building giving rise to major cracks throughout the building from top to bottom initiating damages in almost all the rooms, roof top, bathroom, toilets and basic sewerage system following the ongoing underground massive constructional work of the Metro Railway.

As urgent works involved on the basis of the reports submitted by Civil Engineer, Plumbers as well as Electrical Engineer, the defendant incorporated as many as 18 points detailing works to be done in the said letter of permission appending the points as under-

"(i) the entire terrace/roof top severely cracked resulting in wide range of seepage of water causing severe damages to all the rooms as well as entire walls of the building warrants immediate repairs of the entire roof top.

(ii) All walls throughout the building needs to be repaired and plastered.

(iii) Due to heavy depression and loss of basic balance of building, particularly 3 rooms on the 1st floor marked by us as rooms nos. 105, 106 and 107 are all very badly and severally damaged with all floors cracked and walls and floors and as a result all the 3 rooms are virtually not usable unless floors are reconstructed and damaged walls are removed to reduce the weight on the floors. Accordingly, while we will have to reconstruct the floor, we will have to remove the damaged walls and, as a result the space covering the 3 rooms will look like a big room (approx. 10ft. X 27 ft.) which, we will have to reluctantly use for other purpose may be like small get together or meeting etc. and cannot use as "Living Room" which is in fact a losing proposition to us, since room charges for total 3 rooms are more than the charge of a big room.

(iv) Heavyduty steel angles/bars to be installed in all the protection against heavy cracks damages developed in the wall due to depression.

(v) Heavy duty still angels/bars are to be installed in the front gate portion on the ground floor to take care severe cracks damages developed due to depression.

(vi) The main entrance gate to be repaired and rearranged for the purpose of use, since the gate is not operatable following repairing and remarking.

(vii) Underground water reservoir has become unable due to severe crack and damages due to depression and warrants complete repairing and remaking.

(viii) Toilets and bathrooms have become unusable due to severe cracks and disbalance of the floor following the depression and are required to be repaired thoroughly.

(ix) In all rooms on the front side of the buildings, aluminium frame glass windows to be installed with locking system in order to ensure securities.

(x) The existing three bathroom and four toilets are quiet insufficient for the use of 40 to 50 inmates who are required to check out right in morning within 9.00 A.M. Therefore, we seek your kind permission to convert all rooms with attached bath which will reduce the sufferings of the inmates.

(xi) Roof top reservoir is required to be repaired and redone fully due to cracks developed.

(xii) At least two toilets and two bath rooms to be constructed on the roof top, otherwise it is not convenient for the people on the roof top to use the common provisions on the first floor.

(xiii) Existing kitchen on the roof top is divided by a 3" thin partly partitioned wall into 2 separate portion to look like 2 rooms, one big for kitchen purpose one small for storage purpose and kindly note the 3" thin wall have been also heavily damaged due to cracks developed and therefore, needs to be removed in which case kitchen will look one big kitchen.

(xiv) A roof top disc. Antenna is to be installed for the T.V. to ensure right reception in the interest of the quests.

(xv) The basis sewerage system has been badly damaged due to the depression and existing entire pipe line system is required to be replaced with high quality still pipe throughout the building.

(xvi) Installation of fire fighting equipments which is very essential and urgent as per rule of the fire brigade.

(xvii) Historically old Electric lines are all damaged and not serviceable at all. The entire existing electrical wirings is to be replaced with latest high quality concealed copper wiring with H.C.B. along with latest complete control panel board in order to take protection against possible fire.

(xviii) Due to heavy pollutions of dusts and heavy sound pollution for heavy traffic movements on Chittaranjan Avenue, it has become absolutely essential to install A.C. Machine in all the rooms to ensure healthy atmosphere inside the building for all inmates specially the guest."

In response thereto, the plaintiffs by a letter dated 26.5.1993 (Exbt.16) accepted the proposal of the defendants for emergency repairing/replacement/reconstructions to take care of the building and permission was granted to go ahead with the works and to complete the entire job as highlighted by the defendants under point nos. 1 to 18 of the aforesaid letter under reference at the earliest.

It would reveal from Exhibits-24 and 25 that 2 rooms were 'pucca' and 2 rooms were 'kancha' on the top floor. The report dated 11.9.2008 by Debabrata Ghosh, a registered architect was exhibited in the suit being Exbt-26. The map annexed thereto shows that a reception counter has been installed on the ground floor room/the passage leading to the staircase and three toilets and five rooms have been shown on the top floor as constructed which are not according to the permission so granted by the plaintiffs/landlord.

Rent challan for the month of November, 2005 (Exbt.B) shows that an independent unit consisting of entrance on the ground floor, 11 rooms with bathrooms on the 1st floor and the 2nd floor, 2 rooms and 2 kitchens with asbestos shed and toilets on the terrace/roof of the suit premises are under the tenancy of the defendants. Exbts. 6, 24 and 25 explained the sketch map made part of the report of the Engineer Commissioner (Exbt.-26) and it shows that the constructions were made as per the permission granted by plaintiffs to the defendant.

It would not be out of the context to take note of the fact that by letter dated 16.3.1994 (Exbt.18), the defendants have given detailed information to the plaintiffs to place on record the nature of the job to be executed and how the building would ultimately look like after completion of entire job of renovation, replacements and reconstructions. On the date of seeking permission the tenancy is described to include Entrance, Reception, Under Ground Water Reservoir and Meter Box on the ground floor. The 1st floor was described to contain 4 A.C. Rooms, 3 A.C. Attached Bath Rooms, 1 Big A.C. Room (18' x 27') and 7 Bath cum Toilets. The 2nd Floor contains 12 A.C. Rooms with Attached Bath. The 3rd Floor consists of 2 Pucca Rooms, 2 Brick wall Rooms with Top floor; the top floor is having an ASDE Shed, 1 kitchen with ASBE shed, 2 Bath rooms with ASBE Shed, 2 Toilets with ASBE shed, 1 Store Room with ASBE Shed and an Open Terrace on the North Side. The relevant portion of the letter dated 16th March, 1994 are reproduced below.

"For your kind information and record we also submit hereunder the renovated picture of the permission after completing entire job of renovation, replacements and reconstructions as it stands today under our possession. GROUND FLOOR :Entrance + Under Ground Water Reservoir, Meter Box.

1ST FLOOR : 4 A.C. Rooms + 3 A.C. Attached Bath Room + 1 Big A.C. Room (18'x 27') + 7 Bath-cum Toilets 2ND FLOOR : 12 A.C. Rooms Attached Bath 3RD FLOOR : 2 Pucca Rooms + 2 Brickwall Rooms with ASBE Shed + 1 Kitchen with ASBE Shed TOP FLOOR : + 2 Bath room with ASBE shed + 2 toilets with ASBE shed + 1 Store Room with ASBE Shed + open Terrace on the North side.

FIRST FLOOR AND 2ND FLOOR - In all the 14 rooms @ 7 rooms on the both 1st floor and 2nd floor road side, due to heavy depression, the 3 inches thick separating walls in all the rooms to create provision for small 'Verandah' were absolutely damaged due to heavy cracks & therefore all the separating walls are removed since were beyond repair and also to reduce the burden of weight of walls on the floor. We are enclosing herewith a copy of plan, made by our consultant-Engineer, after completion of the entire work, highlighting the details of the repairing, renovations, replacements and reconstructions made by us as noted here above.

Kindly note, the whole building and property as above is protected with insurance and fire fighting equipments against possible hazards.

We would like to confirm and assure you that the entire job of renovation, repairing, replacements and reconstruction have been done and carried our as above exactly in line with our letter dt. 15.5.93 to you and your clearance and permission that you had approved from time to time as and when we have had taken up and discussed with you during the work in progress apart from you official written permission letter dt. 26.05.1993 and, we are confident, you will please find the entire job in order."

The said letter (Exbt. 18) was duly received by the plaintiffs. The extent of tenancy was never denied until the legal notice was issued on 11th May, 2004. The said renovation and construction was made with the permission of the plaintiffs. The plaintiffs were intimated on 16.3.1994 about the nature and extent of the work together with sketch map as made part of the Engineer Commissioner's report (Exbt. 26).

On the basis of the aforesaid evidence, we find no infirmity in the finding of the learned Trial Judge and the contention of the plaintiffs in paragraphs 8, 9 and 10 of the plaint to the effect that one Mr. Arvind Jhunjhunwalla had negotiation with the plaintiffs for opening an Airtel franchise shop in a portion of the ground floor of the premises consisting of 150 sq.ft. on 27th September, 2005 and on 30th September, 2005 the representative of Mr. Arvind Jhunjhunwalla wanted physical inspection of the premises before finalizing any deal with the plaintiffs and about the removing of the old collapsible gate with that of a new gate installed on the ground floor at the entrance, appears to be a myth and introduced for the purpose of creating the cause of action for the suit. Moreover, it is also appropriate at this stage to take note of the fact that the relationship between the parties until the notice was issued on 11th May, 2004 was cordial and the plaintiffs had no grievance or allegations against the defendant. The defendants continued to enjoy the entrance and reception in the ground floor as part of this tenancy. The conduct of the parties, prior to issuance of the notice for eviction dated 11th May, 2004, is an essential factor to be taken into consideration in order to judge the veracity of the allegations made in the letter dated 11th May, 2004. The exchange of the letters prior thereto is also an important factor to be taken into consideration to understand the nature and extent of tenancy and how the parties have conducted themselves with regard to the creation and continuation of the tenancy. If we read the letters mentioned above together it gives a clear impression that the tenancy includes the reception in the ground floor as it is an integral part of tenancy and without which the tenant cannot fully and wholly enjoy his tenancy. It is an integral part of the tenancy. A hotel would run without a lobby cannot be believed. The nature and purpose of the tenancy and the length of time the tenant occupied and treated the reception at the ground floor as part of tenancy without protest from the plaintiffs are relevant factors to be taken into consideration. A lobby is essential for a hotel to run and the plaintiffs were fully aware of the fact that the defendant would be running a hotel from the premises in question.

On the basis of the said evidence, both oral and documentary, we find that the tenancy of the central portion of premises no.95A, Chita Ranjan Avenue, Kolkata- 700 073 was created in favour of the defendant consisting of the entire ground floor room/passage leading to the staircase, the entire first floor, second floor and the top floor/entire roof top floor for the purpose of carrying its hotel business. We concur with the observations made by the learned Single Judge that it is a common knowledge that when a hotel business is run, a reception counter is always there for the benefit of the customers. On such finding, we are of the view that the defendant has not trespassed into any part of the suit premises. In view of the construction raised towards modification, alteration, reconstruction etc. in the suit premises in terms of the permission granted by the plaintiff/landlord and the plaintiffs were informed after completion of the entire job vide Exbt.-18, it cannot be held that the defendants have made any unauthorized construction without knowledge/consent of the plaintiffs or the predecessor of the plaintiffs. Ergo, the allegations so made in the plaint by the plaintiffs against the defendants cannot be accepted in view of the fact that the entire tenancy of the central portion of the suit premises consisted of ground floor for the egress and ingress to the suit premises for the boarders of the defendants hotel on the first floor, second floor and top floor of the premises.

In view of the aforesaid discussion, we affirm and uphold the judgment and decree passed by the learned Trial Judge. The appeal, thus, stands dismissed. However, there shall be no order as to costs
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