Calcutta High Court (Appellete Side)
Panchanan Pal vs Sikha Roychowdhury on 30 April, 2025
Author: Supratim Bhattacharya
Bench: Supratim Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Supratim Bhattacharya
SA 33 of 2017
Panchanan Pal
Vs
Sikha Roychowdhury, Susmita Roychowdhury, Anita Chatterjee, Smita
Banerjee
SA 34 of 2017
Panchanan Pal
Vs
Sikha Roychowdhury, Susmita Roychowdhury, Anita Chatterjee, Smita
Banerjee
For the Appellant : Mr. Biswajit Hazra
For the Respondents : Mr. Partha Pratim Roy
Mr. Samrat Chakraborty
Judgement Delivered On : 30.04.2025
Supratim Bhattacharya, J.:
1. The appellant /defendant has assailed the judgment and decree
passed by the Ld. Additional Distict Judge, Bolpur Birbhum passed in
Title Appeal No, 18 of 2016 and Title Appeal No. 16 of 2016 which
have been heard analogously vide judgment dated 27.05.2016.
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2. Against the judgment and decree passed in Title Suit no. 43 of 2013
by the Ld. Civil Judge Junior Divn. 2nd Court Bolpur Birbhum, dated
05.12.2015 the plaintiff had preferred the title appeal no. 18 of 2016
while the defendant had preferred Title Appeal No. 16 of 2016.
3. Facts before the Trial Court
The original respondent namely Biswanath Roychoudhury had
instituted the lis praying for eviction of the appellant herein from the
suit property that is a room situated on Plot No. 1801 and Plot no.
1800/2114 being butted and bounded on the north by Suri-Katwa
pucca road, on the south by land of the plaintiff/landlord, on the east
by the Stationery shop of Dhiraj and on the west by book shop of
Nemai Mondal wherefrom the appellant is running a business of
selling utensils made of bronze and brass.
During the pendency of the present Second appeal the original
respondent expired and he has been substituted by his wife and three
daughters namely Sikha Roychoudhury, Susmita Roychoudhury,
Anita Chatterjee and Smita Banerjee respectively.
The appellant/defendant entered appearance in the title suit and filed
his written statement denying and disputing the contentions of the
original respondent /plaintiff even after admitting the demarcations
mentioned in the schedule of the plaint.
The Ld. Trial Court framed the following issues which are as follows:
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“1. Is the suit maintainable in its present form and
prayer?
2. Does the suit suffer from defect of parties?
3. Is the description of the suit property vague or
indefinite?
4. Is the defendant a monthly tenant in the suit
property under the plaintiff?
5. Whether the eviction notice is valid and legal ?
6. Is the plaintiff entitled to get relief as prayed for?
7. To what other relief or reliefs, if any, the plaintiff
is entitled to ?”
4. On behalf of the plaintiff two witnesses have deposed they are
PW1- Biswanath Roychoudhury (Original plaintiff)
PW2- Khagen Chakraborty (Law clerk)
On behalf of the plaintiff the following documents have been adduced
which are as follows:
“Exhibit 1 series: counter part of five rent receipts.
Exhibit 2: Reply regarding the notice of eviction
Exhibit 3 series: The a/d card and postal receipt.
Exhibit 4: Copy of notice.
Exhibit 5: L.R. Porcha”
5. On behalf of the defendant Panchanan Pal the defendant himself has
adduced evidence.
No document has been produced on behalf of the defendant.
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After considering the evidence both oral and documentary of both the
parties the Ld. Trial Judge was pleased to pass the following:
" Hence it is
Ordered
That the instant suit be and the same is decreed on
contest.
The defendant is hereby directed to quite and vacate the
room situated over plot No. 1801 and hand over its
possession in favour of the plaintiff within 03 months from
the date of passing of this order.
There shall be no order as to costs.
The suit is, thus, disposed of on contest. ”
6. Facts before the First Appellate court
The defendant namely Panchanan Pal being aggrieved by and dissatisfied
with the judgment passed by the Trial court preferred an appeal being
Title Appeal No. 16 of 2016 while the plaintiff preferred another appeal
being Title Appeal No. 18 of 2016. The Ld. First Appellate Court heard
both the appeals together and passed the impugned judgment:
“It is,
Ordered
that, the TA No. 18/16 be and the same is allowed on
contest but without cost. The TA No. 16/16 be and the same
is dismissed on contest but without cost.
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Impugned Judgement passed by Ld Trial Court is hereby
modified.
Consequently, the suit is decreed in full. The
defendant/respondent of Title Appeal No. 18/16 and
appellant of Title Appeal No. 16/16 is hereby directed to quit
and vacate the suit property and to deliver peaceful
possession of the same to the plaintiff/appellant of Title
Appeal No. 18/16 and respondent of Title Appeal No. 16/16
within two months the plaintiff will be at liberty to put the
decree into execution.
Let a copy of the Judgement be sent down to Ld Trial
Court for information.”
Panchanan Pal being aggrieved by and dissatisfied with the judgment of
the First Appellate Court preferred the present second appeal.
7. At the time of admission of the present appeal one substantial
question of law has been framed which is as follows:
“Whether the Ld. Courts below were justified in holding that
the suit for eviction of a tenant under the Transfer of Property
Act on termination of tenancy by service of notice at the
instance of one of the landlords without joining co-landlords
as parties in the suit is maintainable ? ”
8. Ld. Counsel namely Mr. Biswajit Hajra representing the appellant
during his exhaustive argument has submitted that
i) The plaintiff has failed to adduce any evidence to prove that the
defendant is a monthly tenant under the plaintiff in respect to the
plot no. 180/2114 and the plaintiff has also failed to establish his
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title in respect of the said plot as such the suit in respect to the
said plot was dismissed and no eviction had been granted in
respect of the said plot in favour of the respondent/plaintiff.
ii) He has further submitted that from the schedule of the plaint it
transpires that the entire suit property lies within the plot No.
1800/2114 and not within the plot No. 1801 and the eviction
which was sought for from the plot No. 1800/2114 has been
refused by the Ld. Trial Court.
iii) He has further submitted that the direction of evicting the
defendant from the plot no. 1801 does not and cannot arise at all
as per the description given in the schedule as according to the
respondent/plaintiff himself there is no existence of possession of
the defendant’s shop room.
iv) He has further submitted that the plaintiff though has mentioned
that after the death of his father the suit property had been gifted
to the plaintiff by the other sisters and brothers by virtue of the
alleged registered deed of gift but no such deed of gift has been
produced. As such the plaintiff has not been able to prove his title.
v) He has further submitted that PW1 during cross-examination has
once stated that the plot No. 1801 is having an area of 8 decimal
but on the other hand the said witness could not say how much
area of land is in plot No. 1801 which is owned by him.
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vi) He has further submitted that the witness PW1 has deposed that a
partition deed took place whereby his father had obtained the ‘Ga’
schedule property but the said deed has not been produced.
vii) He has further submitted that the plaintiff has deposed that he will
appoint a survey passed commissioner to measure the plots so
that the boundary disputes can be adjudicated properly but that
has not been done so.
viii) He has further submitted that the plaintiff has relied upon the rent
receipts but in the rent receipts there is no mention of the plot
numbers and the Ld. First Appellate court relying upon the rent
receipts where plot no. 1801 is only mentioned held the
defendant’s tenancy in respect of both the plots
ix) He has also submitted that the plaintiff has failed to establish any
right, title or interest in respect of the plot No. 1800/2114.
x) He has further submitted that the First Appellate Court
misconstrued that there is admission of the defendant in respect of
induction by the father of the plaintiff in respect of the plot no.
1800/2114 and when the plaintiff is claiming derivative title from
his father in the eye of law there is no bar in challenging the
derivative title in respect of plot no. 1801 particularly when the
plaintiff has failed to produce the partition deed and the deed of
gift.
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xi) The ld. Counsel has relied upon the judgment published in AIR
1966 SC 735 and submits that in a suit for eviction, if the
relationship of landlord and tenant is not proved then if the
defendant’s status can be proved to be a licensee then and only
then decree for eviction can be passed and as the plaintiff has
neither been able to prove the landlord tenant relationship nor
being able to prove the status of the defendant to be a licensee no
order eviction can be passed.
xii) He has further relied upon another judgment published in (2022) 1
SCC 115 wherein it has been stated that defect in the pleading
cannot be cured it cannot be cured at any stage and as such if
prayed for allowing the instant appeal by dismissing the judgment
of the First Appellate Court.
9. Ld. Advocate Mr. Partha Pratim Roy being assisted by Mr. Samrat
Chakraborty representing the respondent has submitted the following:
i) The respondent/plaintiff has filed the LR Record of Rights and has
been able to prove his title over the suit property, so he is entitled
to get a decree.
ii) He has further submitted that as regards to the defendant being a
monthly tenant in respect of the suit property the Ld. Trial Court
held that the plaintiff has failed to prove the relationship between
the plaintiff and the defendant but from the evidence on record it
transpires that the defendant has admitted that he was a tenant
9under the father of the plaintiff in respect of plot no. 1801. So the
plaintiff is entitled to get a decree of eviction in respect of plot no.
1801.
iii) He has further submitted that the Ld. First Appellate Court came
to a finding that the defendant has failed to prove tht he was a
tenant in respect of any shop over plot Nos. 1808, 1801 and
subsequently he took a room on rent from the father of the plaintiff
in plot No. 1801 and the First Appellate Court has observed that
the defendant took a room on rent in plot No. 1801.
iv) He has further submitted that the First Appellate court has
categorically observed that the defendant took room on rent on
plot no 1801 and unless and until the defendant proves that he
was an independent tenant in respect of plot no. 1801 and 1808 it
is presumed that the suit property or the shop room is a tenanted
premises of the defendant and the plaintiff and defendant are
tenant and landlord respectively.
v) He has further submitted that the defendant witness no. 1 has
admitted during his evidence that there is Suri Katwa Pukka road
on the northern side of the suit shop room, on the southern side
there is vacant and on the eastern side there is a stationary shop
of Dhiraj and on the western side there is a book stall of Nimai
Mondal. So it is admitted by the defendant that the room in respect
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of which the tenancy was granted is the suit shop room as
mentioned in the schedule of the plaint.
vi) He has further submitted that during the cross-examination it has
been admitted that the defendant has no document to show that
he has any tenancy over plot No. 1808.
vii) He has further submitted that from the aforementioned facts it
appears that defendant is a tenant in respect of the suit shop room
and boundary of the said shop room has also been admitted by the
defendant. So the contention of the appellant/ defendant that the
suit property is vague and is not at all correct as such it is
unacceptable.
In this context the respondent has relied upon a judgment cited in
AIR 1963 SC 1879 and has further submitted that the Hon’ble
Apex court has categorically held that where there is no doubt as
to the identity of the property then the boundaries mentioned will
prevail.
viii) He has relied upon a judgment of the Hon’ble Apex Court
published in (2006) 2 SCC 724 to stress upon the issue that a co-
sharer is entitled to file a suit for eviction until and unless the
other co-owners have expressed their disagreement in respect of
initiation of such proceeding.
ix) The Ld. Counsel has further relied upon a judgment published in
(2016) 3 SCC 296 to emphasize upon the issue that the plaintiff is
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entitled to a decree of eviction against the defendant in spite of the
plaintiff having failed to prove the relationship between the parties
as landlord and tenants as the said judgment of the Hon’ble Apex
Court has laid down the differences as regards to the scope of
enquiries regarding ownership in a litigation between landlord and
tenant and that one in title suit.
x) The Ld. Counsel has also relied upon a judgment reported in
(2019) 4 SCC 397 wherein the Hon’ble Apex cpourt has decided
that the second appeal can only be decided on the question framed
under Section 100 (4) of the Code of Civil Procedure and if at the
time of the hearing the High Court considers that the second
appeal involves any other substantial question(s) of law it has the
jurisdiction to frame the question(s) but only by assigning the
reasons.
Banking upon the aforesaid facts and circumstances the Ld.
Counsel has prayed for dismissal of the appeal and has further
prayed for passing an order in favour of the respondent to
withdraw the amount deposited by the appellant before the
executing court as occupational charge.
10. Decision with reasons
This Court delves into the issues including the substantial
question of law.
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So long as the provisions of Rent Control Acts are not made
applicable to a particular area the rights and obligation of the
landlord and the tenant are to be governed by the provisions of the
Transfer of property Act. In this regard Section 1 (3) of the West
Bengal Premises Tenancy Act, 1997 is laid down. The said provision
states as follows:
“(1) …
(3)It extends to the areas included within the limits of the
Calcutta Municipal Corporation and the Howrah Municipal
Corporation and to the municipal areas within the meaning of
the West Bengal Municipal Act, 1993:
Provided that the State Government may, by notification,
extend this Act or any provision thereof to any other area
specified in the notification, or may, by notification, exclude
any area from the operation of this Act or any provision
thereof.”
As the suit property is situated within the panchayat area and
not within the municipal area so the present lis is to be guided by the
provisions of the Transfer of Property act and the said transfer of
interest is lease.
As regards to the schedule of the plaint the plaintiff has in
details stated about the demarcations of the suit property, that is one
room. It has been stated by the respondent/plaintiff that the said room
is butted and bounded on the north by Suri Katwa Pucca road on the
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south by the land of the plaintiff/landlord, on the east by a stationary
shop of Dhiraj and on the west by a book shop belonging to Nimai
Mondal. The appellant/defendant during his cross-examination has
admitted that it is fact that there is Suri Katwa Pucca road to the
northern side of the suit room, to the southern side there is vacant
land of landlord, to the eastern side there is stationery shop of Dhiraj
and on the western side there is book shop of Nemai Monal. Thus the
appellant defendant has admitted in toto the boundary/demarcations
of the suit property and he has submitted that it is ‘suit room’. Thus,
the controversy which has been raised as regards to plot/dag number
of the suit property is put to rest by the defendant himself.
It is to be seen as regards to schedule of a plaint herein the suit
room as to whether it can be identified or not and whether if any order
is passed that can be executable or not. In this regard this Court relies
upon Paragraph No. 11 of the judgment passed by the Hon’ble Apex
court in the case between Zarif Ahmad (dead) through legal
representatives and another Vs. Mohd. Farooq and cited in (2015)
13 SCC 673 is reproduced hereunder:
“11. Order 7 Rule 3 of the Code of Civil Procedure, 1908 (for
short “CPC“), which pertains to the requirement of description
of immovable property, reads as under:
“3.Where the subject-matter of the suit is immovable
property.–Where the subject-matter of the suit is immovable
property, the plaint shall contain a description of the property
sufficient to identify it, and, in case such property can be
14identified by boundaries or numbers in a record of settlement
or survey, the plaint shall specify such boundaries or
numbers.”
The object of the above provision is that the description of the
property must be sufficient to identify it. The property can be
identifiable by boundaries, or by number in a public record of
settlement or survey. Even by plaint map showing the
location of the disputed immovable property, it can be
described. Since in the present case, the suit property has
been described by the plaintiff in the plaint not only by the
boundaries but also by the municipal number, and by giving
its description in the plaint map, by no stretch of imagination,
can it be said that the suit property was not identifiable in
the present case.”
On overall consideration it is evident that the suit property that
is the suit room is being used by the appellant/defendant for the
purpose of business dealing in utensils made of bronze and brass
since long which has been admitted by the appellant/defendant.
The defendant/appellant in his written statement has also stated
that adjoining to a room situated on the dag No. 1808 just on its
southern side he had taken a room on monthly rent of Rs. 100/- from
Byomkesh Roychowdhury (who was the father of the original plaintiff)
and the said room is situated on the dag No. 1801 and the said
appellant/defendant had made the two separate rooms into one and
has been carrying on business. It is admitted fact that the present
respondent namely Biswanath Roychowdhury is a son of Byomkesh
Roychowdhury from whom the appellant/defendant obtained the suit
room for running his business on monthly rent.
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It is neither denied nor disputed that the original plaintiff
namely Biswanath Roychowdhury is the son of Byomkesh
Roychowdhury, on the contrary it has been stated on behalf of the
appellant that apart from the original plaintiff (Biswanath
Roychowdhury) there are other legal heirs of Byomkesh
Roychowdhury who are also co-sharers.
For the sake of argument if it is taken into consideration that
apart from Biswanath Roychowdhury there were/are several other co-
sharers in respect of the suit property then also it is settled law that
one of the co-sharers landlords can sue on behalf of all praying for
eviction of the tenant. In this issue this Court relies upon Paragraph
10 and 11 of the judgment passed by the Hon’ble Apex Court in the
case between Mohinder Prasad Jain vs. Manohar Lal Jain
published in (2006) 2 SCC 724 which states as follows:
10. This question now stands concluded by a decision of this
Court in India Umbrella Mfg. Co. v. Bhagabandei
Agarwalla [(2004) 3 SCC 178] wherein this Court opined:
(SCC p. 183, para 6)
“6. Having heard the learned counsel for the parties we are
satisfied that the appeals are liable to be dismissed. It is well
settled that one of the co-owners can file a suit for eviction of
a tenant in the property generally owned by the co-owners.
(See Sri Ram Pasricha v. Jagannath [(1976) 4 SCC 184]
and Dhannalal v. Kalawatibai [(2002) 6 SCC 16] , SCC para
25.) This principle is based on the doctrine of agency. One co-
owner filing a suit for eviction against the tenant does so on
his own behalf in his own right and as an agent of the other
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co-owners. The consent of other co-owners is assumed as
taken unless it is shown that the other co-owners were not
agreeable to eject the tenant and the suit was filed in spite of
their disagreement. In the present case, the suit was filed by
both the co-owners. One of the co-owners cannot withdraw
his consent midway the suit so as to prejudice the other co-
owner. The suit once filed, the rights of the parties stand
crystallised on the date of the suit and the entitlement of the
co-owners to seek ejectment must be adjudged by reference
to the date of institution of the suit; the only exception being
when by virtue of a subsequent event the entitlement of the
body of co-owners to eject the tenant comes to an end by act
of parties or by operation of law.”
11. A suit filed by a co-owner, thus, is maintainable in law. It
is not necessary for the co-owner to show before initiating the
eviction proceedings before the Rent Controller that he had
taken option or consent of the other co-owners. However, in
the event a co-owner objects thereto, the same may be a
relevant fact. In the instant case, nothing has been brought
on record to show that the co-owners of the respondent had
objected to eviction proceedings initiated by the respondent
herein. The submission of the learned counsel for the
appellant to the effect that before initiating the proceedings,
the respondent was required to show that he had experience
in running the business in Ayurvedic medicines, has to be
stated to be rejected. There is no law which provides for such
a precondition. It may be so where a licence is required for
running a business, a statute may prescribe certain
qualifications or preconditions without fulfillment whereof the
landlord may not be able to start a business, but for running
a wholesale business in Ayurvedic medicines, no
qualification is prescribed. Experience in the business is not a
precondition under any statute. Even no experience therefore
may be necessary. If the respondent has proved his bona
fide requirement to evict the appellant herein for his own
purpose, this Court may not, unless an appropriate case is
made out, disturb the finding of fact arrived at by the
Appellate Authority and affirmed by the High Court.
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The judgment published in AIR 1966 SC 735 cited on behalf of
the appellant does not help the case of the appellant as because the
appellant himself has admitted that he took the suit room from the
father of the original plaintiff at a rent of Rs. 100/- per month and
has also admitted that the original plaintiff namely Biswanath
Roychowdhury is one of the sons of Byomkesh Roychowdhury.
The other judgment published in (2022) 1 SCC 115 cited on
behalf of the appellant is also of no help to the appellant as because
the boundaries of the suit property mentioned in the schedule of the
plaint has been admitted by the appellant in toto as such there is no
insufficiency in identifying the suit property.
This being the position this Court finds that the Ld. First
Appellate Court has come to the correct conclusion hence this Court
does not find any reason to interfere with the judgment passed by the
Ld. First Appellate Court in the two first appeals.
11. As such the present appeal being No. SA 33 of 2017 and SA 34 of
2017 are dismissed without any cost.
12. The appellant is directed to handover the possession of the suit
room to the respondent within three (3) months from this date of
judgment.
13. Parties shall be entitled to act on the basis of the server copy of the
judgment and order placed on the official website of the Court.
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14. Urgent certified photo copies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
(Supratim Bhattacharya, J.)
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