This second appeal is directed against the judgment and decree dated 25th February, 2009 passed by the learned judge, Small Causes Court, Sealdah in Title Appeal No. 76 of 2007, affirming the judgment and decree dated 29th June, 2007 passed by learned Civil Judge (Junior Division), Second Court, Sealdah in Title Suit No. 565 of 1997 dismissing the Suit.
Appellant's/plaintiff's case in short is that he is the owner of two storied suit building by a document of transfer (Deed of release/Muktipatra, dated 25.03.1988 Exhibit-'2') wherein respondent/defendant resides as a tenant in respect of one room in the ground floor, having tile shed on bamboo framed structure. According to plaintiff, the respondent/tenant committed default in the payment of rent since June, 1994, and since the plaintiff reasonably required the suit premises for his own use and occupation of his family members, having no reasonably suitable accommodation elsewhere, a eviction suit being T.S. 565 of 1997 was instituted against the tenant taking grounds of defaulter and reasonably requirement, as available in the tenancy legislation, after serving ejectment notice dated, 1st March, 1997, determining the tenancy of the respondent with the expiry of the month of April, 1997, which was duly accepted by tenant/respondent by putting his signature in A.D. card, and since the defendant/tenant did not vacate the suit premises in terms of the eviction notice, the instant suit found its emergence.
The respondent/defendant tenant contested the Suit by filing written statement denying all the material allegations of the plaintiff and contending, inter alia, that the plaintiff had sufficient accommodation in the suit premises, and the plaintiff also suppressed the accommodation which he has purchased during the pendency of the suit, and thus denied number of the family members of the plaintiff, stated in the plaint. In the written statement, defendant/respondent, also denied to have committed any default in the monthly payment of rent, as alleged, and further challenged the legality, validity of the service of eviction notice, and thus prayed for dismissal of the suit.
On the basis of the pleadings of the parties, the learned Trial Court framed as many as eight issues, mentioned herein below:
1. Whether the suit is maintainable in its present formant law.
2. Whether the notice to quit legal, valid and sufficient and has validly been served upon the defendant.
3. Whether the defendant is defaulter in payment of rent.
4. Whether the plaintiff is the owner of the suit premises.
5. Whether plaintiff reasonably requires the suit property for his own use a occupation and for his family members.
6. Whether the plaintiff has any other, reasonable suitable accommodation elsewhere.
7. Whether the plaintiff is entitled to get Decree as prayed for.
8. Whether the plaintiff is entitled to get any other relief.
Both sides adduced oral as well as documentary evidence before the Trial Court. On the basis of the said evidence, learned Trial Court dismissed the suit disbelieving the reasonable requirement of the plaintiff/landlord after holding that the landlord/plaintiff had failed to establish his ownership over the suit premises, from which defendant was sought to be evicted, on the ground that the deed of release was not sufficient enough to vest title upon the plaintiff, as it was not a deed of conveyance, and further the plaintiff/landlord deliberately made misstatement in the notice of attornment (Exhibit-'A') so as to get the ownership and title of the plaintiff/landlord admitted by respondent/tenant.
The landlord/plaintiff filed Title Appeal being No. 76 of 2007 in the First Appellate Court, challenging the said judgment and decree. Learned First Appellate Court dismissed the appeal concurring the view, given by the learned Trial Court with regard to defective title of plaintiff/landlord so as to claim ownership over the suit building on the strength of deed of release (exhibit-2) observing therein further that it was insufficient to pass title for being without any consideration and further prepared on the insufficiently stamp paper of Rs.30. The First Appellate Court, however, differed the view of the Trial Court with respect to the findings reached pertaining to the issue of reasonable requirement, and proceeded to believe the reasonable requirement of the plaintiff on the ground that there was an element of need, genuine in sense, to have a decent and modest living, which could not be made possible from the existing available accommodation in the suit building without evicting the respondent/tenant from the suit premises.
Being aggrieved by and dissatisfied with the judgment dismissing the first appeal by the First Appellate Court, the Second Appeal has been preferred by the plaintiff. At the time of admission of the Second Appeal, the Division Bench of this court framed the following substantial question of law, to be heard at the time of disposal of this appeal, which may be mentioned as hereunder:
"Whether the learned courts below committed substantial error of law in holding that the plaintiff could not prove title to the property by totally overlooking the fact that the Exhibit 1 and Exhibit 2 having been executed on the selfsame date and at the same time by virtue of Exhibit 3 the name of the plaintiff having been mutated in the Kolkata Municipal Corporation, it was apparent that the transaction was a benami one and such transaction was not hit by the provisions of Benami Transaction Prohibition Act as the transaction had taken place long prior to coming into operation of the said Act."
The moot point in this case is whether the deed of release (Exhibit-'2'), prepared on insufficiently stamp paper, followed by registration coupled with deed of conveyance, stood in the name of releasors (Exhibit-'1') together would be sufficient enough to pass title upon appellant/landlord/plaintiff in the given set of facts at least for the purpose of giving effects to the grounds of defaulter and reasonable requirement under the provisions of West Bengal Premises Tenancy Act, 1956, in connection with a prayer for eviction or not.
On perusal of the written statement filed by the respondent/tenant, it goes without saying that respondent/defendant did not deny the appellant's/landlord's title over the suit property disputing with the ownership, but on the contrary the respondent/tenant in his application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 had conspicuously admitted the appellant/plaintiff as his landlord and accepting the appellant as landlord, deposited arrears of rent complying with the direction, passed by the learned Trial Court.
Learned advocate for the appellant submitted that both the learned courts below failed to consider the real purport of the Release deed (Exhibit-'2') so as to reveal the true intention of the executants, which could be found from the words employed in the recitals of the deed itself thereby completely divesting and/or relinquishing all the propriety rights of the executants/releasors in favour of the transferee/releasee, and it should have been taken to be sufficient to pass title in favour of the plaintiff/landlord, irrespective of the nomenclature of the deed being used, and the amount of stamp duty paid on it, which are relevant, but were not conclusive on the question of construction of the deed.
Learned advocate for the appellant/landlord further argued that though the property was purchased in the name of Gourmohan Roy and Jayanti Pal, by a deed of conveyance dated 25.03.1988 (Exhibit-'1'), executed by one Biswanath Singh, but the necessary money as regards consideration value was supplied by the plaintiff/landlord himself, which he himself disclosed in his evidence, and further the reference of which could be found in the deed of release itself (Exhibit-'2'), and that being the position the plaintiff/landlord could be well construed to be real purchaser of the property, held in benami by deed dated 25.03.1988 vide Exhibit-'1', and this aspect not being hit by Benami Transaction Prohibition Act could have been duly considered by the both the courts below, and non-consideration of which caused a great prejudice to the legitimate right of the appellant/plaintiff with regard to his claim for eviction, instituted against the respondent/tenant.
Reliance was accordingly placed by the learned advocate for the appellant on decision reported in AIR 1977 Cal 509 deliverd in the case of Satyesh Chandra Banerjee vs. Sm. Rani Banerjee and Ors. , in order to establish that a deed of release, whereby the executants completely divested themselves relinquishing all their right, title and interest in a property in favour of the releasee woul be sufficient enough to pass title being within the meaning of transfer. In such decision the cases of Hemendra Nath Mukherji vs. Kumar Nath Roy reported in (1908) 12 Cal WN 478, Subramanian Chetiar vs. Revenue Divisional Oficer repored in AIR 1956 Mad. 454, Thayyil Mammo vs. Kottiah Ramunni reported in AIR 1966 SC 337 and Kuppu Swami vs. A.S.P.A. Arumugan, reported in AIR 1967 SC 1395 were duly noticed and the relevant provisions of such judgment pertaining to the text under reference requiring decision from this end may be mentioned as hereunder:
"The first decision is Hemendra Nath Mukerji v. Kumar Nath Roy, reported in (1908) 12 Cal WN 478. In this case a registered deed of disclaimer whereby the executants, inter alia, relinquished all their right, title and interest and claim in a property in favour of the releasee, was held to be transfer and that such transfer was complete as soon as the deed was registered.
The next decision, Subramanian Chetiar v. Revenue Divisional Officer, reported in AIR 1956 Mad 454 was cited for the proposition that an unstamped or defectively stamped document was not void but was effective from the date of its execution, though incapable of being made use of in evidence until stamped properly.
The next decision cited was Thayyil Mammo v. Kottiah Bamunni . Here the Supreme Court considered a registered deed which recorded a surrender of proprietary rights under a prior deed in favour of some of the parties. The Supreme Court approved and applied the decision of Hemendra Nath Mukherji (supra) and held that a registered instrument, styled as release deed, releasing the right, title and interest of executant in any property in favour of the releasee for valuable consideration, might operate as a conveyance, if the document clearly disclosed and had an intention to effect a transfer. It was held further that nomenclature of the deed and the amount of stamp duty paid on it, though relevant, were not conclusive on the question of construction.
The next decision cited was Kuppu Swami v. A. S. P. A. Arumugan, . In this case the Supreme Court extended the principle, laid down in Mamma's case (supra) and held that a registered instrument releasing the right, title and interest of the releasor without consideration might operate as transfer by way of a gift if the document clearly showed an intention to effect a transfer and was signed by or on behalf of the releasor and was attested by at least two witnesses. The deed which was being considered by the Supreme Court in that case showed an intention to transfer title and the operative words of the deed were held to be sufficient to convey title."
Here in this case the deed of release Exhibit-'2' was prepared on a stamp paper of Rs. 30 and subsequently registered. The Exhibit-'1' is a deed of conveyance, dated 25.03.88, executed by one Biswanath Singh in favour of Gourmohan Roy and Jayanti Pal, vide deed No. 1538, while the Exhibit-'2', a deed of release, was executed on the self same date i.e. on 25.03.88 by Gourmohan Roy and Jayanti Pal, in favour of releasee plaintiff/landlord vide deed No. 1544. Admittedly both the deeds were executed on self same date i.e. on 25.03.88. The deed of release was executed subsequent to the execution of the deed of conveyance by Biswanath Singh in favour of releasors. The evidence adduced by the parties showed that prior to the deed of release being registerd, Exhibit-'1', transferring right, title and interest of the suit building in favour of the Gourmohan Roy and Jayanti Pal, came into being.
Upon perusal of the words used in the recitals of Exhibit-'2' (Deed of Release), it appears that sufficient elements were there revealing complete divestment of the releasors relinquishing thereby their right, title and interest and claim in the property in favour of the releasee. The intention of the executants of the deed of release subsequently stood disclosed by reason of the words being used relinquising all the right, title and interest of the executants in favour of the executee/releasee. The amount of stamp duty may be defectively paid, though relevant, were not conclusive on the question of construction of deed. The deed of release as such cannot be regarded to be void one. Upon true construction of the words used in the recitals of deed of release, it appears that it was a transfer in view of the decision of the Hemendranath Mukherjee (supra), but it cannot be regarded as a deed of gift.
Learned advocate for the respondent controverting the submission raised by the appellant focused his argument submitting that a release deed would not be effective to transfer a title, and reliance was accordingly placed on a decision reported in AIR 1960 Madras 33 (V 47 C 10) delivered in the case of K. Hutchi Gowder vs. H. Bheema Gowder. According to the learned advocate for the respondent a release deed can only feed title, but cannot transfer title. Learned advocate for the respondent further submitted that though the plea of benami had been taken by the plaintiff/landlord in the instant case for alleged claim of funding behind the purchase in the name of benamidars, but in the absence of proof of the source, from where the purchase money came and the motive as to why the property was purchased in benami, the tests for determining whether a transaction standing in the name of one person was in reality for the benefit of the another, could not be said to have been successfully satisfied. Thus according to learned advocate for the respondent that the ordinary presumption in law is that that the person, who purchases the property, is the owner of the property, but the same can be displaced by successfully pleading and on proving that the document was taken benami in the name of another person for some reason, and the person whose name appeared in the document was not the real owner, but only a benami, and to establish such episode heavy burden lies on the person, who pleads that the recorded owner was a benami holder.
Reliance was placed accordingly by respondent on decisions reported in AIR 1980 SC 727 delivered in the case of Bhim Singh vs. Kan Singh, AIR 2007 SC 2637 delivered in the case of V. Shankaranarayana Rao (D) by L.Rs. and Ors. vs. Leelavathy (D) by L.Rs. and ors. and (2004) 2 WBLR (SC) 705 deliverd in the case of Valliammal (D) By LRs. Vs Subramaniam & Ors. The decisions referred above basically operates in the field dealing with tests, determinative of benami transaction and the necessary obligation/burden to be discharged, while pleading benami transaction, favourable to the case of a party. According to respondent, such heavy burden in support of the plea of benami transaction could not be satisfactorily discharged, and both the courts below concurred the view, based on a finding of fact, and as such the same would go undisturbed even with the application of Section 100 C.P.C.
It was further argued on behalf of the respondent relying upon decision, reported in AIR 1957 S.C. 49 (V 44 C 9 Feb.) delivered in the case of Sree Meenakshi Mills Ltd. Madurai vs. Commissioner of Income tax, Madras that when both the courts below disbelieved the fact of purchase in benami by the plaintff/landlord for want of supply of fund being proved by the plaintiff himself, such finding of fact should not be again gone into with the aid of Section 100 C.P.C., for the concurrent finding of fact on a particular issue not being erroneously reached.
It is very significant to note that the burden lies heavely on the person, who alleges that the property was purchased in the name of benamidar for the alleged fund being provided. The principles governing the determination of question whether a transfer is a benami transaction or not was addressed by the Apex Court, in the case of Bhim Singh (dead) by L.Rs and another vs. Kan Singh, reported in 1980 S.C. 727, which was reenforced subsequently in the case of V. Shankaranarayana Rao (D) L. Rs and Ors. vs. Leelavathy (D) by L. Rs and Ors., reported in AIR 2007 Supreme Court 2637. Such broad principles, as referred by respondant, may be summed up, as follows:
"The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc."
The oral testimony of plaintiff/landlord asscerting to have funded the money from his own independent source, for the deed being prepared in the name of benamidar, admittedly could not be supported by any documents. In the deed of release itself (Exhibit-'2') sufficient reference was there to show that the money was funded by the plaintiff/landlord himself being the releasee herein, to which the benamidar like Gourmohan Roy and Jayanti Pal, had no honest contribution to it. Evidence was there at the instance of the plaintff/landlord claiming to have been in possession of the property all along since 25.03.2008, vide Exhibit-'1', said to have been made in the name of benamidars.
Another important test of benami is to find out who has been in enjoyment of the benefits of transaction. In the absence of any contrary evidence being established in this case, it cannot be concluded with all certainty that any person, other than the plaintiff/landlord himself has been in enjoyment of the benefits of the transaction, which sufficiently stood demonstrated from Munitipal tax recipt (Exhibit-'3'), prepared in consequence of claim of possession of the landlord/plaintiff to get his name duly mutated in the Municipal Assessment Register.
The essence of benami transaction is the intention of the party or parties concerned, and sometime such intention is shrouded in a thik veil, which cannot be easily pierced through. There was nothing cospicuous to reveal that benamidars, like Gourmohan Roy and Jayanti Pal, vide Exhibit-'1', had any blood relation with the plaintff/landlord seeking eviction in this case. The true character of the transaction is governed by the intention of the person, who has contributed the purchase money, and such intention has to be decided on the basis of surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the trasanction and their subsequent conduct. The true intention of the transaction, as claimed by the plaintiff/landlord, stood amply demonstrated in the release deed itself, wherein the releasors candidly admitted to have not made any honest contribution towards the funding of consideration value of the deed, prepared in the name of benamidars/releasors. Though there was no document in support of the fund being supplied by the plaintiff/landlord, in order to prepare a deed in the name of benamidar, but the recitals of the deed of the release itself suffciently demonstrated true intention of the parties pin pointing to the fact as to who had actually contributed to the purchase money favourable to the purpose of plaintiff/landlord. There was document like tax reciept, marked as Exhibit-'3', indicative to show the subsequent conduct of the landlord/plaintiff, coupled with the fact of uncontroverted testimony of plaintiff/PW-1 claiming to have been in possession of the entire suit building, even before the date of execution of the release deed, which all together would go to suggest that Exhibit-'1' was held in benami for the funding being made by plaintiff/landlord, a true/real owner. The movties governing their action in holding the property in benami got self reflected from the unchallenged claim of possession of plaintiff/landlord in the suit building.
Very strong argument was raised by the learned advocate for the respondent that in the absence of passing of consideration amount, the title could not be passed on to the releasee on the basis of a release deed, prepared on a defective stamp paper of Rs.30/-. The true intention of the plaintiff/landlord having sufficiently demonstrated from his subsequent conduct together with his claim of possession of the suit building, and further there being sufficient document ( evident from Exhibit-'C'), which was in proof of enjoyment of the benefits of the transaction, the solitary evidence of the plaintiff/landlord claiming to have funded the purchase money in connection with deed of conveyance, prepared in the name of benamidar, cannot be disbelieved on the sole ground that it remained unsurported by convincing documents. Such oral testimony of plaintiff/PW-1 being backed by the admission of releasors asserting to have not contributed the fund for the purchase in the name of benamidars/releasors, lent substantial ratification to the one and only inevitable conclusion that it was releasee/plaintiff himself, who supplied the money for the deed being prepared in the name of benamidars (vide Exhibit-'1') Learned advocate for the appellant relying on decision reported in AIR 2004 Delhi 282 delivered in the case of Suresh Chand Gupta and Ors. vs. Man Mohan Gupta submitted that once it is held that executant of the deed of release/Mukti Patra was a benamidar, the question of holding any right, title and interest in the suit property as true owner would never arise and, therefore, there need not be any consideration to pass for their executing release deed in favour of the real owner. In the case referred above, the deceased father purchased the property in the name of his son/defendant. The defendant/son had acquiesced the ownership of his father in respect of suit property in the deed of release prepared by the defendant/son, dated 11.02.1971. Admission was there by the defendant/son that plot in question was purchased by his father from his own money, but the sale deed was executed benami in the name of son/defendant. The defendant/son further admitted that his father raised construction from his own fund and to clear any doubt about his title, the defendant/son got the release deed executed.
Under the circumstances, even though the plaintiff, brother of defendant in connection with a suit for partition as 1st class legal heirs failed to bring any direct evidence to prove that purchase of the plot in the name of defendant was the benami transaction, but they will not be prejudiced in any way because the admission of the material fact by the defendant, as contained in the release deed, and the conduct of the parties would be sufficient for the purpose. It was accordingly held that the suit property was purchased by the father from his own fund and the defendant/son was named only as benamidar in the sale deed. Accordingly, both the brothers (plaintiff and defendant) were granted with equal share.
The ratio decided in such decision is that once it is held that executant of the deed of release was only benamidar, the question of his holding right, title and interest in the suit property as true owner does not arise, and therefore nothing is required as consideraiton for executing release deed in favour of real owner. Therefore, passing of consideraiton is not the one and only consideration, determinative of a transaction, wherein there had been complete divestment of the right, title and interest of the releasor in favour of the releasee.
What is gathered from the discussion made hereinabove is that Mukti Patra/ release deed, prepared on an insufficient stamp paper and subsequently registered, is sufficient enough in the given set of facts to assume the status of a transfer, and it was complete as soon as the same was registered, and this proposition was already propounded in the case of Hemadra Nath Mukherjee (supra), what was futher relied upon by the Apex Court in the case of Thayyil Mammo vs. Kottiah Ramunni (supra).
Though it was grossly challenged by the respondent that the release deed would not be sufficient enough to transfer title for want of passing consideration, and further if the case of the plaintiff/landlord, based on benami transaction was at all accepted, the same would not stand for want of supply of fund being proved in evidence by cogent and convincing evidence, but proof of supply of fund not being sole test is not determinative of instant transaction, which, however, stood sufficiently demonstrated from the admission of the releasors stating to have not honestly contributed anything towards funding the consideration value of the deed being held in the name of the benamidars/releasors, and as such, passing of consideration in the instant transaction would not matter much to frustrate the case of the landlord/plaintiff seeking eviction. The essence of benami transaction being the intention of the parties so far as Exhibit-'1' is concerned in the instant case has to be ascertained from the surrounding circumstances including that of the subsequent conduct and the continuous enjoyment of the benefits of the transaction exclusively by the releasee/plaintiff himself, to the exclusion of the others, coupled with the further action to protect his possession, revealed from the steps undertaken in getting his name mutated in the Municipal Assessment record of right, irrespective of absence of near relationship between plaintiff himself with that of the releasors. The transaction, vide Exhibit-'1' accordingly was necessarily a benmani in nature, which found its existence sometimes before the prohibition of Benami Transaction Act came into being in May,1988, and as such the transaction involving Exhibit- '1' went beyond the scope of application of the Provision of Prohibition of Benmai Property Transactions Act, 1988.
The next question begging answer is whether a registered document, prepared on insufficiently stamp paper would be sufficient enough to pass title for our required purpose, limited to giving effects to be grounds of default and reasonable requirement only or not.
The learned advocate for the appellant argued with much emphasis that in this case the respondent/tenant started disputing the relationship of landlord/plaintiff, in course of conducting the trial and particularly at the time of raising argument, even after making an application under Section 17(2) of West Bengal Premises Tenancy Act, 1956, and after furnishing written statement admitting conspicuously therein the relationship and accordingly accepted the transferee landlord, as owner, and further deposited the arrears of rent, as held by the court in compliance with the direction of trial court in terms of the prayer under Section 17(2) and (2A) of the Act.
Relying on a decision reported in AIR 1961 SC 1655, delivered in the case of Javer Chand and Ors. vs. Pukhraj Surana (a Bench of the Apex Court, comprising of four Hon'ble Judges) submitted that the Section 36 of Stamp Act would come into operation providing immunity to the document from challenging the admissibility of document marked as Exhibit in a case where a question as to the admissibility of a document was not raised on the ground that it was improperly stamped, when the document was tendered in evidence. Ratio decided there is that once a document has been admitted in evidence, such evidence cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. This proposition of law was further reinforced by the Apex Court in the case of Shyamal Kumar Roy vs. Sushil Kumar Agarwal, reported in (2006) 11 SCC 331. It would be profitable here to quote the relevant portion of Paragraph 15 of the said decision, as referred by appellant, which maybe mentioned as hereunder :-
"Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross- examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction."
The document marked as Exhibit- '2' was so done on proof without any objection being raised by the respondent/tenant at the appropriate point of time, when the document was tendered in evidence. The entire trial in the instant case was proceeded all along on the footing that the document was marked as Exhibit in the case and was made use of by the parties in examination and cross- examination, which would be sufficient enough to pave the way for Section 36 of the Stamp Act, to come into operation for providing immunity to a document from challenging the admissibility of a document further or at any subsequent stage of the proceeding meaning thereby that what could not be resisted by the respondent/tenant, when it was tendered in the evidence, the same could not be challenged further.
Reliane was further placed by the learned advocate for the appellant on a decision reported in AIR 1972 SC 608, delivered in the case P.C. Purushothama Reddiar vs. S. Perumal, wherein it was propounded that it was not open to a party to object to the admissibility of document without any objection being raised at the beginning from such party.
Referring to Section 92 of Evidence Act, which precludes a party for leading evidence contrary to the terms of written document, learned advocate for the appellant placing reliance on a decision reported in 2004 (2) SCC 283, delivered in the case of Krishi Utpadan Mandi Samiti Sahaswan, District Badaun vs. Bipin Kumar and Anr., submitted that both the Trial Court and the learned First Appellate Court disregarded the provision of Section 92 of the Evidence Act and proceed to rely much upon the oral testimony of PW-1, transpired in cross-examination, which was extremly not permissible under the provisions of the law, in getting the title document of the plaintiff (Exhibit '1' & '2') unnecessarily clouded.
Learned advocate for the respondent, however, challenged the submission of the appellant on this score replying to the effect that it was a trite law that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a court of law, and further the document which is otherwise inadmissible cannot be taken evidence, only because no objection to the admissiblity thereof was taken at the beginning.
Argument was further canvassed at the instance of the respondent relying on a decision reported in AIR 1971 SC 1865 delivered in the case of Sait Taraje Khimchand Ors. vs. Yelmarti Satyam and Ors. and AIR 2010 SC 1162 delivered in the case of Malay Kumar Ganguly vs. Sukumar Mukherjee & Ors. that marking of a document as an exhibit would not ipso facto riase a bar to challenge the admissibility of the document, and as such even after the document being marked as Exhibit, the liability to prove the document would not be dispensed with.
Here in this case both Exhibit-'1' and Exhibit-'2' were proved in evidence by plaintiff/P.W.1, when admittedly no objection was riased touching the admissibility of the document, and in consequence thereof the document conferring right, title and interest upon the plaintiff/landlord was marked exhibit like Exhibit-'1' and Exhibit-'2'. Section 36 of the Stamp Act provides immunity to the instruments/documents laying down that once a document admitted in evidence and marked Exhibit, such admission cannot be questioned at a later stage. The judgment of the Apex Court, rendered by Hon'ble four Judges, in the perception of this court, holds the filed as in the Javer Chand and Ors. (supra), the Apex Court held that the Section 35 is in the nature of penal provision and has far reaching effects. In the case of Javer Chand and Ors (supra) hundis were marked as Exhibits and bore the endorsement admitted in evidence under the signature of court. It was observed therein that parties to a litigation, where such controversy was raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. It is not the case where a document is inadvertently admitted in evidence without the court applying its mind to the question of its admissibility. The resistance raised by the respondent as to the admissibility of document, marked as Exhibit-'2' was unduly raised at a subsequent stage of trial, when the document marked as Exhibit-'2' was tendered in evidence went unchallenged, and ultimately marked as exhibits without any objection being raised. The inadequacy of the stamp paper giving rise to the question of admissibility of document not being raised at the very beginning, in the perception of this court, cannot be allowed to be controverted any more at the subsequent. It was the incumbent duty of the court to judicially determine the matter as soon as the document is tendered in evidence and before marked as exhibit in the case, and the moment, the document is admitted in evidence, Section 36 of the Stamp Act would come into operation providing immunity to the document against the challenge as to the admissibility of the document for not being properly stamped. That being the position this court is not supposed to give any decision on Section 92 of Evidence Act, though referred incidentally, as it has got nothing to do with the admissibility of a document, which is grossly challenged in this case.
Every thing pertaining to the admissibility of the document marked as Exhibit-'2', and the relationship disputing with the ownership of landlord/plaintiff were admittedly raised during the course of trial and more particularly at the time of argument. Beyond all controversy, it is the accepted position that plaintiff/landlord was not the inducting landlord. On the strength of transfer vide Exhibit-'1' and Exhibit-'2', the plaintiff acquired status of owner landlord being within the meaning of transferee landlord.
The settled proposition of law is that a tenant can raise challenge against the derivative title of the transferee landlord, but at the right point of raising such challenge, the respondent/tenant omitted to do the same. Neither in the Section 17(2) of the W.B.P.T Act, nor in the written statement filed by the respondent/tenant, the respondent/tenant had ever challenged the relationship of parties disputing with the ownership of landlord. Explanation was given by respondent/tenant as to why such objection could not be raised at the appropriate point of time stating to the effect that for making mis-statement in the letter of attornment (Exhibit-'A'), given at the instance of transferee/landlord, the respondent was made to believe the relationship admitting the plaintiff as owner, and since the notice of atonement, marked as Exhibit-'A', was an outcome of misrepresentation of fact, the tenant/respondent would have every right to raise the objection at the time of trial and raising argument, because respondent/tenant had the first occasion to know about such documents, when such documents were first produced before the learned Trial Court for tendering the same in evidence.
Learned advocate for the appellant relying on a decision reported in 2002(3) SCC375 delivered in the case of Sheela and Ors. vs. Firm Prahlad Rai Prem Prakash submitted that a tenant would be estopped under Section 116 of the Evidence Act from challenging the title of landlord/owner in a case, when a tenant was duly apprised of transfer of title of landlord, and the tenant acknowledged the title of transferee by paying rent to him. Thus referring Section 116 of the Evidence Act, learned lawyer for the appellant frankly submitted that the rule of estoppel, as provided under Section 116 of the Evidence Act, would come into operation against the tenant/respondent, even to challenge derivative the title of transferee landlord and that too at the subsequent stage of the proceeding.
Admittedly this is a suit for eviction wherein the landlord relied upon the grounds of reasonable requirement and defaulter only. The case being primarily founded upon Section 13(1)(ff) of the W.B.P.T Act, 1956, the landlord seeking eviction as such has to establish that he is the owner of the suit property, and further he is not in possession of any other reasonable suitable accommodation elsewhere. The intricacies of incidents of title giving rise to the ownership need not be deeply gone into in the instant case of eviction, which is completely different from the parameters, required to be looked into, while making declaration of title in connection with declaratory suit. Though there has been some misdescription with regard to the nomenclature of the document providing right, title and interest to the plaintiff/landlord so as to claim ownership over the property and to demand rent from the tenant in occupation of the tenanted premises, but such misstatement or the wrongly worded statement cannot be construed to be a misrepresentation of the fact entitling respondent/tenant to challenge the title of the landlord. The findings of learned First Lower Appellate Court while concurring the findings of the Trial Judge that the (Exhibit-'A'), notice of atonement, was the product of misrepresentation allegedly served by the plaintiff/landlord purposefully to get the tenant/respondent admitted as owner of the suit premises can hardly be described to be perfect appreciation of the situation based on evidence, and in that view of the matter, it should not be taken to be fatal for the plaintiff/landlord so far as his claim for eviction is concerned. What the plaintiff needs to establish is that he is having superior right/better title in relation to the defendant/tenant in order to establish his ownership found in Section 13(1)(ff) of the W.B.P.T Act, 1956, and this proposition of law was decided in the case of Swadesh Ranjan Sinha vs. Haradeb Banerjee reported in (1991) 4 SCC 572.
The respondent/tenant having accepted the plaintiff as landlord and thereafter depositing the arrears of rent as per order of the court without disputing the relationship in connection with his application under Section 17(2) of W.B.P.T Act, 1956, for the peculiarity of the circumstances involved in the case, the respondent/tenant must be held estopped from challenging the title of the owner any more banking upon the misdescription with regard to the nomenclature of the document providing right, title and interest to the plaintiff/landlord.
The decision of issue No.4, as reached by both the courts below holding the plaintiff/appellant to be not landlord at least for the purpose of Section 13(1) (ff) W.B.P.T Act, 1956, in the considered view of this court, is not the perfect appreciation of the evidence adduced by the plaintiff, both oral or documentary. In the given set of facts, for the discussions made hereinabove, Exhibits- '1', '2' and '3' together would lead to an irresistible conclusion that appellant/plaintiff sufficiently acquired ownership on the strength of such documents, at least for the purpose of 13(1) (ff) of the W.B.P.T Act, 1956.
Learned first Appellate Court believed the reasonable requirement of plaintiff/landlord differing the findings reached by the learned Trial Court, based on the advice regarding mode of user of the suit building. Learned first Appellate Court appears to have rightly reached to the finding, while differing the view of Trial Court, that court should not dictate the mode of user of the suit building, and it should have been left at the discretion of the landlord proposing eviction. The mode of user as suggested by the Trial Court was thus rightly differed by the learned First Appellate Court, while believing the reasonable requirement. Neither the comfort level of landlord so as to have a peaceful living in his own house, nor the choice of landlord/plaintiff can be guided and/or determined either by the advice of court or receiving suggestion of tenant, sought to be evicted. It is purely left at the discretion of landlord/plaintiff to secure his optimum level of comfort zone to the extent possible.
The reasonable requirement of the plaintiff/landlord was categorically shown in para 4, 5 and 5A of the plaint, wherein plaintiff categorically stated that he required one room for himself and his wife, one room for his son, two rooms for his married daughters, one drawing room, one room for the consultancy business of the plaintiff, one study room for his son, one kitchen, one dining room, one Thakur Ghar and one room for his whole time made servant, apart from the requirement of one store room. It was the case of the appellant/plaintiff that as a retired personnel he wanted to start a consultancy business in the suit premises, which he could not start for dearth of accommodation in the suit premises. It was also the case of the landlord/plaintiff that the son of the plaintiff who is working in a private concern, needed to be provided with a study room for his pursuing study connected with computer matter. The respondent/tenant challenged the reasonable requirement submitting that there had been suppression of fact, as during the pendency of the suit, the landlord had already purchased a shop room for his son, where the son of the plaintiff already started a fast food business, and as such there was no genuine requirement as shown in plaint. Relying on a decision, reported in 1989(2) CLJ 170, delivered in the case of Hiralal Roy vs. Smt. Arati Chatterjee & Ors. learned advocate for respondent submitted that requirement pleaded must be genuine and bona fide requirement, not a fanciful or a ruse, and the case in hand must be taken to be fanciful on the simple ground that landlord despite owning 6 (six) rooms and a small 'L' shaped room, in the suit building failed to satisfy his needs, what was very hard to believe. The Appellate Court, while believing the reasonable requirement of the plaintiff had taken into account that the son of the plaintiff might be having one business, but still then he could start another business for his livelihood in the interest of augmenting his income, and as such the same could not be described to be a fanciful claim of the landlord, devoid of element of genuine need or extreme necessity. The view so subscribed by the learned First Appellate Court being based on evidence must go unaltered. Though it was argued by the respondent that as regards reasonable suitable accommodation elsewhere, the plaintiff/landlord had paternal share at Bagbazar, which could be effectively made use of, but in view of production of the certified copy of the sale deed dated 11.11.95 by the plaintiff/landlord himself, there left sufficient materials to show that plaintiff/landlord had already sold his right, title and interest in the ancestral property to his elder brother in respect of the property situated at Bagbazar. Therefore, it can be concluded with all certainty that plaintiff/landlord had reasonable accommodation elsewhere.
The suit premises was inspected by the learned Inspection Commissioner and a report was accordingly submitted, marked as Exhibit-'14'. According to learned Inspection Commissioner's report, the suit building is a two storied building having room on the roof. There are three rooms in the ground floor and two rooms in the first floor of the building, apart from the 'L' shaped small room in the staircase. The existing possession of plaintiff over altogether six rooms with one 'L' shaped small room, apart from bath and privy and covered Varanda/passage was successfully admitted by the plaintiff himself in his evidence, which is far short of his reasonable requirement of ten (10) rooms, apart from the necessity of all time servant's room. The tenanted premises comprised of one room, as shown in the Commission's report is said to be situated in one portion of the courtyard, made of brick wall and tile sheded. The learned First Lower Appellate Court appears to have rightly appreciated the reasonable requirement of landlord in the context with the evidence adduced in this case having discovered the element of necessity, genuine need in objective sense, which was contrary to fanciful desire and mere wish of the landlord proposing eviction in the instant case. The reasonable requirement having believed by the learned Firs Appellate Court with sufficient findings, based on evidence would be sufficient enough supportive of a decree of eviction for the ground incorporated in Section 13(1) (ff) of the W.B.P.T Act, 1956 having been successfully proved in evidence.
Both the courts below failed to appropriately decide the issue pertaining to the point of defaulter on the simple ground that since the title of the plaintiff/landlord was defective on the basis of deed of release, there developed no occasion for the courts below to independently deal with such issue. In view of the provision incorporated in Order 14 Rule 2, the Court is under obligation, while holding trial to decide all the issues before pronouncing judgment except when the case is otherwise disposed of on preliminary issue based on law and fact pertaining to the jurisdiction of the court and a bar engrafted in any other provisions of law creating conspicuous prohibition to the institution of a particular suit.
Though there was nothing available that subsequent to the disposal of petition
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er under Section 17(2)and (2A) of the W.B.P.T Act, 1956, there had been further violations as regards the payment of rent during continuance of proceeding of eviction suit, but materials were there in the judgment of the both the courts below that the respondent/tenant had deposited the arrears of rent as per assessment of the learned Trial Court complying with the direction of the Trial court. Though there had been no sufficient determination of the issue pertaining to the ground of defaulter but in the given set of facts, another ground based on reasonable requirement under Section 13(1) (ff) of the W.B.P.T Act, 1956 having been successfully proved in evidence, the plaintiff/landlord should not be deprived of a decree of eviction upon fulfilment of the proof of ejectment notice. Both the courts below consciously sticked to their finding that title of the plaintiff having been clouded, the issuance of eviction notice, if there be any as sine qua non to the institution of the eviction suit, was held invalid and defective. The eviction notice dated 01.03.97 was admittedly issued in this case which was duly received by the respondent/tenant putting his signature on 12.03.97. The A.D. Card bearing the signature of the respondent/tenant together with the postal receipt sufficiently proved the service of the eviction notice upon the tenant. The suit was admittedly instituted on 02.09.97. The tenancy of the respondent/tenant is guided by English Calendar month. The term of the notice sufficiently manifested as regards providing clear 30 days time expiring with the month of tenancy (i.e. April 1997), after the date of receipt of the notice was granted, while issuing notice of eviction suit in determination of tenancy, held by respondent/tenant. There left no ambiguity to the perfect understanding of the stipulation contained in the notice. The term of the notice being unambiguous, served in terms of the provisions of the law providing sufficient time for vacating the suit premises, which was specifically stipulated in the notice, the notice must be held legal, valid and sufficient paving thereby the way for grant of a decree of eviction. Since proof of at least one ground subsequent to the fulfilment of the notice is sufficient to grant a decree of eviction, it is immaterial, if other grounds, taken by the plaintiff/landlord, go unproved. Lastly learned advocate for the respondent/tenant took shelter to two decisions reported in 2007 (1) SCC 546 delivered in the case Gurdev Kaur and Ors. vs. Kaki and Ors. and in 2001 (7) SCC 494 delivered in the case of Leela Soni and Ors. vs. Rajesh Goyal and Ors. in order to persuade the court to establish that the concurrent findings reached by the both the courts below on a particular fact should not be disturbed taking aid of Section 100 C.P.C. Here in this case, learned First Appellate Court while dealing with the issue of ownership, determined the issue adopting an erroneous approach resulting from misreading of the provisions of the law causing a great injustice to the plaintiff/landlord, which should not be allowed to perpetuate any more. Such finding of fact reached by the First Appellate Court having arrived at on the basis of an erroneous approach must be taken to be curable taking aid of Section 100 C.P.C. The judgment thus referred above would hardly have significance over the merits of the case. Attention of the court was drawn at the instance of the learned advocate for the respondent to the income tax clearance being obtained in the name of the purchasers vide Exhibit-'1', as distinct and different from the plaintiff himself, and thereafter learned advocate for respondent argued that the transfer if any effected was made making contravention of the provisions of the law. As has already discussed that Exhibit-'1' was prepared in the name of benamidar as against the real purchaser/plaintiff himself and such transaction having not hit by provisions of the Prohibition of Benami Property Transactions Act, 1988 for the document in question having found its existence in March, 1988 i.e. something before the Act came into being, the argument as advanced by the respondent, for the discussion made herein above would not be an acceptable stand. The appeal therefore, succeeds. The appellant/plaintiff/landlord as such do get a decree of eviction against respondent/tenant. The respondent/tenant is directed to quit, vacate and deliver vacant khas possession of tenanted premises to landlord/plaintiff within 60 days for the date of this order, failing which the appellant/plaintiff/landlord would be at his liberty to put the decree in to execution. Office is directed to send one copy of judgment to learned 1st Appellate Court for information. With this direction and observation, the appeal is disposed of. Office is further directed to send down lower court's record along with copy of the judgment by special messenger to the learned Trial Court for information and necessary action after complying with the provisions of law. Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.