Calcutta High Court (Appellete Side)
Gouranga Saha vs Barin Burman And Others on 14 May, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Uday Kumar
F.A. No.4 of 2019
+
CAN 1 of 2018
(Old No. CAN 8987 of 2018)
With
F.A. No.5 of 2019
+
CAN 1 of 2018
(Old No. CAN 8990 of 2018)
Gouranga Saha
Vs.
Barin Burman and Others
For the appellant : Mr. Saumen Datta,
Mr. Sudhir Kumar Sadhukhan,
Ms. Moumita Basak
For the respondents : Mr. Sounak Bhattacharya,
Mr. Anirban Saha Roy,
Mr. Sounak Mondal,
Mr. Abhirup Halder
Heard on : 05.05.2025 and 08.05.2025
Hearing concluded on : 08.05.2025
Judgment on : 14.05.2025
Sabyasachi Bhattacharyya, J.:-
1. The present appeals arise out of the same suit and, as such, are taken up
together for analogous hearing.
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2. The appellant filed a suit for declaration of his tenancy right in respect of the
suit premises, which is comprised of four car parking spaces at 12, Beadon
Row, P.S- Bortolla, Kolkata – 700 006, and consequential reliefs. The
defendants/respondents filed a counter claim seeking eviction of the
plaintiff/appellant as a trespasser. The suit was dismissed, against which
F.A. No.4 of 2019 has been preferred, and the counter claim of the
respondent was allowed, giving rise to F.A. No.5 of 2019.
3. The bone of contention between the parties is their respective right, title and
interest in the suit property.
4. By an agreement dated February 4, 2003, one Chittaranjan Ghosh, a tenant
under the original ownersin respect of the original property at 12, Beadon
Row, granted sub-tenancy of one big room, one kitchen and separate
adjoining space to the plaintiff/appellant allegedly on oral consent of the
owners/superior landlords.
5. Subsequently, the owners entered into a development agreement with one
Ashish Roy and one Dilip Kumar Saha for development of the suit building.
6. On August 10, 2005, the said Ashish Roy, being a developer and one of the
constituted attorneys of the owners, entered into a „Deed of Rehabilitation of
Tenant‟ with the plaintiff/appellant, agreeing that if the appellant vacates
the said building as it originally stood, four car parking spaces with 20 per
cent super built-up area would be sold on the Northern Side of the ground
floor of the newly constructed building to the appellant at a consideration
ofRs.2,50,000/-. It was recorded in the said deed that out of the total
3consideration, Rs.2,00,000/- was being paid in advance and the balance
would be paid later.
7. The property was duly developed.
8. Subsequently, on February 6, 2007, the owners of the property, represented
by Ashish Roy, one of their constituted attorneys, granted lease to the
plaintiff in respect of the newly constructed four demarcated car parking
spaces on the Northern side of the ground floor on 12, Beadon Row. As per
the lease agreement, the plaintiff would be entitled to remain as a lessee in
respect of the said property (the present suit property) at a monthly rental of
Rs.1000/-(calculated as interest at the rate of 2 per cent of the balance
consideration amount of Rs.50,000), and upon the balance consideration
amount being paid by the appellant, the appellant would be entitled to have
a sale deed registered in his favour in respect of the said four car parking
spaces, the outer time limit for which was stipulated as 21years.
9. In the meantime, on January 27, 2007, the owners, through their
constituted attorneys Ashish Roy and Dilip Kumar Saha, executed sale
deeds in respect of the separate flats along with allocated car parking spaces
on the western side of the building to the defendants as well as to one
Pratima Saha, the wife of the appellant. The sale deed dated January 27,
2007 executed in favour of Pratima Saha is admittedly identical with the
sale deeds executed in favour of the defendants, apart from the individual
flats and car parking spaces being different.
10. Learned counsel for the appellant argues that it is clear from the rent
receipts and the documents produced by the appellant that the appellant
4was inducted by the owners as a lessee in respect of the suit car parking
spaces on monthly rental basis. If the appellant pays the balance
consideration amount within 21 years, the said four car parking spaces will
be sold to the plaintiff/appellant.
11. It is argued that the respective sale deeds of each of the defendants as well
as the appellant‟s wife clearly exclude the suit car parking spaces which
were allocated specifically to the appellant. It is argued that the common
and proportionate rights conferred on the purchasers in respect of the
common areas and open spaces as well as other facilities exclude the four
car parking spaces allocated to the appellant. It is argued that the learned
Trial Judge overlooked the sale deeds of the defendants/appellants
themselves, along with the Deed of Rehabilitation of Tenant and Lease
agreement executed in favour of the appellants, which were all produced in
the trial court, to hold that no proof of the right of the appellant to the suit
spaces was furnished.
12. Learned counsel appearing for the defendants/respondents contends that
the suit was bad for non-joinder of Ashish Roy, under whom the plaintiff
claims tenancy, although the principal relief sought was declaration of the
plaintiff‟s tenancy rights.
13. It is submitted that an application under Order I Rule 10 of the Code of Civil
Procedure was filed by the plaintiff/appellant in the suit to add Ashish Roy
as a party to the suit. However, by an order dated August 26, 2011, the
same was dismissed, against which no revisional application was preferred
5by the appellant. Thus, it is contended that the present suit is bad for non-
joinder of necessary party.
14. It is contended by learned counsel for the appellant that Clause 13 of the
sale deeds in favour of the defendants stipulated that the purchasers‟
interest in the undivided portion of land, as more fully described in the First
Schedule, shall remain joint with the other co-owners of the building. The
First Schedule, it is argued, describes the entire property, as evident from
the description therein as well as the boundaries thereto. Hence, the said
Clause clearly confers right on the defendants/respondents with regard to
the entire open space adjoining the suit building, including the disputed car
parking spaces.
15. It is contended that although the Third Schedule of the said sale deeds
provides for an exception in respect of the areas demarcated as open covered
car parking spaces, since there is a conflict between the said Clause and
Clause 13, Clause 13 (being the earlier Clause) shall prevail. In support of
such contention, learned counsel cites Radha Sundar Dutta v. Mohd.
Jahadur Rahim and others, reported at AIR 1959 SC 24.
16. Learned counsel for next contends that the plaint Schedule does not
stipulate the exact measurement of the suit property and, as such, the relief
claimed is vague.
17. It is further argued that the owners retained no title and the entire property
was vested with the developer. Thus, there was no scope of any lease being
granted to the appellant by the owners through their constituted attorney.
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18. It is pointed out that in answer to a question put to the appellant as
witness, he categorically stated that he will not cite Ashish Roy as a witness,
for which adverse inference ought to be drawn against the appellant.
19. Learned counsel for the respondents contends that the rehabilitation deed is
in essence an agreement for sale and, thus, is compulsorily registrable
under Section 17(1)(a) of the Registration Act. The lease deed executed in
favour of the appellant, being for a period of more than one year, is also
compulsorily registrable under Section 107 of the Transfer of Property Act.
Since both deeds are unregistered, the Trial Court could not have relied on
those.
20. Learned counsel contends that the causes of such documents cannot be
looked into even for a collateral purpose, those being inadmissible in
evidence. Counsel cites a judgement of a Division Bench of the Madras High
Court in the matter of Kotamreddi Seetamma v. Vannelakanti Krishnaswamy
Row and another, reported at AIR 1917 MAD 718,in support of the
proposition that enactments relating to registration and attestation relateto
public policy and the courtsdo not overlook the samereadily.
21. Learned counsel cites R.V.E. Venkatachala Gounder v. Arulmigu
Viswesaraswami& V.P. Temple and another, reported at (2003) 8 SCC 752,
for the proposition that objection as to admissibility of documents in
evidence may be classified into two categories, where the document is itself
inadmissible and where the mode of proof is disputed. In the first case,
merely because a document is marked as an exhibit, an objection as to
admissibility is not excluded to be taken at the later stage. However,
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objections as to mode of proof cannot be reopened later. In the present case,
it is contended, the issue relates to admissibility of the documents and
ought to be looked into at the hearing stage.
22. Learned counsel next cites G.M. Shahul Hameed v. Jayanthi R. Hegde,
reported at (2024) 7 SCC 719, where it was held inter alia that the court may
not turn a blind eye to the fact that the Revenue would stand the risk of
suffering huge loss if the court fails to discharge the duty placed on them as
per provisions like Section 33 of the Indian Stamp Act. It is incumbent upon
the courts to uphold the sanctity of the legal framework governing the stamp
duty as the same is crucial for the authenticity and enforceability of
instrument.
23. Learned counsel appearing for the respondents also relies on K.B. Saha &
Sons (P) Ltd. v. Development Consultant Ltd., reported at (2008) 8 SCC
564,where it was held that use of an unregistered document, which is
otherwise compulsorily registrable, to prove an important clause would not
be a mere collateral purpose. A “collateral transaction” must be independent
of or divisible from a transaction which requires registration. As such, even
for a so-called collateral purpose, it is argued, an otherwise compulsorily
registrable document, if unregistered, cannot be looked into.
24. Upon hearing learned counsel for the parties, we arrive at the following
conclusions:
8
Whether the Trial Court could look intothe unregistered and
insufficiently stamped documents
25. The plaintiff/appellant primarily relies on three documents. The first
document, being a tenancy agreement between Chittaranjan Ghosh, a
tenant, and the plaintiff, granting sub-tenancy of a room, kitchen and
adjoining space in the building as it originally stood, is not compulsorily
registrable, since the same created a monthly tenancy. That apart, the same
has only collateral value as evidence, as it did not create any title or right
which is germane for the present consideration. The said antecedent
document merely shows that the plaintiff/appellant had been in occupation
of the original building, justifying the developer of the original
ownerssubsequently entering into an agreement with him.
26. One of the germane documents, however, is the Deed of Rehabilitation of
Tenant dated August 10, 2005. The said deed, although purporting to have
components of an agreement for sale, has merely collateral value for
provingthe tenancy and possession of the plaintiff/appellant. Things might
have been otherwise if the present suit was for specific performance of the
said agreement itself, in which case it would be a direct, and not collateral,
evidence and might have been argued that the agreement was compulsorily
registrable and could not be admissible as direct evidence in view of its non-
registration and insufficiency of stamp duty. However, the present suit is for
declaration of the plaintiff/appellant‟s tenancy right, in which context, the
document merely proves possession of the suit car parking spaces being
handed over to the appellant and forms a prelude to the grant of lease in
9
respect of the same to the appellant. Thus, individual clauses of the said
deed need not be looked into for declaring the tenancy rights of the
appellant. The said document is merely a component in the chain of events
which circumstantially prove the build-up to grant of lease to the appellant.
27. The crucial deed in the present context is the Agreement for Lease dated
February 6, 2007. The said agreement also recognises the right of the
plaintiff/appellant to have a deed of conveyance registered in his favour
upon payment of balance consideration. However, such right is merely
recognised on the strength of the prior Deed of Rehabilitation dated August
10, 2005. The lease agreement dated February 6, 2007, by itself, does not
purport to be an agreement for sale but merely recognises such prior right
conferred by the deed of rehabilitation.
28. Thedocument, as such, has to be seen in appropriate perspective, being
anagreement of lease not exceeding 21 years. It is well-settled that Section
107 of the Transfer of Property Act mandates a lease deed to be registered in
the event a lease of more than one year is created. However, it is equally
well-settled that in the event such a deed is unregistered, the same purports
to create a tenancy from month to month. Hence, per se, Section 107 does
not mandate a lease deed to be registered in order to create a tenancy. Such
adeed, if unregistered, can form a piece of evidence, coupled with delivery of
possession, of the monthly tenancy created in favour of the lessee. Hence,
the said document is also not a compulsorily registrable document.
29. As per the terms of the lease agreement, monthly rent of Rs.1000/- is to be
paid by the appellant-tenant for enjoying the lease. Hence, the said
10
document cannot also to be construed to be inadmissible in evidence due to
non-registration and insufficiency of stamp duty.
30. The judgments cited by learned counsel for the respondents in respect of
inadmissibility of the documents-in-question are irrelevant for the present
purpose. Regarding insufficiency of stamp, Section 33 of the Indian Stamp
Act has to be read with Section 36 thereof. The latter provision stipulates
that no document can be called into question on the ground of
inadmissibility for insufficiency of stamp duty if no objection as to such
admissibility was taken at the outset.
31. Although, as a general proposition, the objection relating to admissibility, as
opposed to mode of proof, can be taken at later stages of the suit, such right
of the respondents in the present case is circumscribed by the provisions of
the Indian Stamp Act. Since the bar of stamp duty emanates from the
Indian Stamp Act, under Sections 33 and 35 of the same, the waiver thereto
has also been read within the four corners of the said statue. Section 36
circumscribes Sections 33 and 35 and debars the defendants/respondents
from raising the issue of admissibility specifically on the ground of
insufficiency of stamp duty since such objection was not taken at the time of
marking the Deed of Rehabilitation of Tenant and Lease Agreement as
exhibits. Thus, such objection could not be taken at a later stage by the
respondents, having lost the opportunity to do so at the stage when the
concerned deeds were admitted in evidence and marked as exhibits.
32. Also, as discussed earlier, the Deed of Rehabilitation of Tenant was used
merely for the collateral purpose of establishing the tenancy right of the
11
appellant and not for the direct purpose of seeking a specific performance of
the said agreement by treating the same as an agreement for sale. As such,
its non-registration is irrelevant for its admissibility a evidence.
33. The Lease Agreement, as discussed above, purported to be a piece of
evidence to prove a monthly tenancy being created in favour of the appellant
and hence, was not registrable.
34. Thus, the said cited judgments do not help the defendants/respondents in
any manner.
35. Thus, this issue is held in favour of the appellant and the documents-in-
question are admissible in evidence and could be looked intoby the Trial
Court while coming to its conclusions.
Interplay between the rights of the defendants/respondents and the
plaintiff/appellant vis-à-vis the suit property
36. The Deed of Rehabilitation dated August 10, 2005 clearly conferred
possession in respect of the four car parking spaces along with 20 per cent
super built-up area on the Northern side of the ground floor of the suit
property in favour of the appellant. The said document precedes the sale
deeds in favour of the respondents. Pursuant to the deed of 2005, a lease
deed was entered into by the owners of the property through their
constituted attorney Ashish Roy on February 6, 2007, thereby granting
monthly tenancy, not to exceed the period of 21 years, in favour of the
appellant. The appellant has also produced rent receipts with regard to the
said property.
12
37. There is no shade of doubt, as evident from the description of all the
aforesaid deeds, that the four car parking spaces are demarcated and
divided, being located on the Northern side of the ground floor of the suit
building whereas none of the allocated car parking spaces sold to the
defendants/respondents are situated on the Northern side of the suit
property. The argument that the plaint description is vague cannot be
accepted, since the four demarcated car parking spaces have been
mentioned to be located on the Northern side of the property and clear
boundaries have been provided in the Schedule of the plaint.
38. As opposed to such right created in favour of the plaintiff/appellant, we are
to look into the relevant clauses of the sale deeds executed in favour of the
respondents, as exemplified by the Deed of Conveyance dated January 27,
2007 in favour of the appellant‟s wife, which is admittedly identical with the
respondents‟ deeds.
39. Learned counsel for the respondents has argued that Clause 13 precedes
the First Schedule of the deed and as such must have primacy over the
latter. Counsel has cited Radha Sundar Dutta (supra) in support of such
proposition.
40. However, such proposition cannot hold good in the context of the present
case. The ratio laid down in the said judgment only applies in cases where
there is a conflict between an earlier clause and a latter clause, in which
case the earlier shall prevail. In the present case, however, the clauses of
the sale deeds can be harmonized and, between themselves, create a
complete scheme. By the sale deeds, self-contained flats on the upper
13
floorsof the building have been allocated to the respondents, along with car
parking spaces on the ground floor of the premises. Conspicuously, none of
such specifically ear-marked car parking spaces of the respondents is
situated on the Northern side of the property.
41. As opposed thereto, the appellant‟s four car parking spaces are located on
the Northern side and have been mentioned to be “demarcated and divided”
in the Deed of Rehabilitation as well as the lease agreement in favour of the
appellant.
42. The next important question which arises is whether the said car parking
spaces are covered by the undivided common space, over which all the
respondents have proportionate share.
43. Clause 13 of the sale deed in favour of the appellant‟s wife and the
corresponding clauses in the respondents‟ respective sale deeds provides
that the purchasers‟ interests in the undivided portion of land shall remain
joint with the other co-owners. Such clause is circumscribed by the phrase:
“as more fully described in the First Schedule”. The First Schedule
describes only the area of 6 cottahs and 12 chittaks, which is restricted to
the area of the building standing thereon, and does not include the
adjoining open spaces.
44. It is the Second Schedule of the appellant‟s wife‟s sale deed (relied on by
both parties as exemplifying the respondents‟ sale deeds as well) which
prescribes that apart from the self-contained flats on the upper floors of the
building and the ear-marked car parking spaces on the ground floor (none of
which are on the Northern side), the purchaser shall have proportionate
14
undivided share or interest in the common area and facilities provided to the
said building “mentioned in the Third Schedule” thereunder. Thus, the
description of the common rights to the open spaces conferred by the
Second Schedule is circumscribed by the Third Schedule.
45. Serian No.1 of the Third Schedule, which describes the particulars of the
common areas and facilities, in no uncertain terms provides that such areas
will comprise of open paths or passages and driveways save and except
areas demarcated as an open covered car parking space. Thus, the Second
Schedule, read with the Third Schedule, clearly provides that the common
rights enjoyed by the purchasers by dint of theirrespective sale deeds would
be restricted to the open paths, passage and driveways excluding the areas
which are already demarcated as open or covered car parking spaces.
46. There is no conflict, thus, between Clause 13 and the Schedules to the
deeds. The purchasers, by virtue of the said deeds, obtained title in respect
of their respective flats situated on the upper floors of the building along
with their ear-marked car parking spaces situated on the ground floor,
except the appellant‟s Northern-side four car parking spaces. The common
rights of the purchasers are confined to the open paths or passage or
driveways save and except the areas demarcated as open or covered car
parking spaces.
47. Thus, the respondents‟ sale deeds, read in conjunction with the Deed of
Rehabilitation and Lease Agreement in favour of the appellant, make it
crystal clear that the appellant‟s four demarcated and divided car parking
spaces, situated on the Northern side of the ground floor of the building,
15
come within the purview of the exception clause of the Third Schedule of the
sale deeds of the respondents. Hence, there cannot be any manner of doubt
that the respondents got title in their respective flats and allocated car
parking spaces, along with the common open paths, passage and driveways,
but specifically excluding the four demarcated car parking spaces pre-
allocated to the appellant.
48. Hence, this issue is decided in favour of the appellant by holding that the
appellant has exclusive lease-hold rights and an actionable claim for
purchase in respect of the four suit car parking spaces, in exclusion of the
respondents.
Whether the suit is bad for non-joinder of necessary party
49. It is to be noted that the appellant sought to implead Ashish Roy, the alleged
landlord, by way of an application under Order I Rule 10 of the Code of Civil
Procedure, which prayer was refused by the Trial Court itself. The
respondents did not challenge such order; rather, they objected to the said
application, resulting in the same being dismissed. Hence, the respondents
cannot now turn around and argue that the suit was bad for non-joinder of
the said Ashish Roy as a necessary party.
50. That apart, it is not necessary that in every suit for declaration of tenancy
rights, the landlord has to be impleaded as a party. A civil suit is
maintainable under Section 9 of the Code of Civil Procedure as well as
Section 34 of the Specific Relief Act if a legal right, status or character of a
person in respect of an immovable property is infringed. The persons who
16
seek to infringe such rights are necessary parties and none else. The
plaintiff/appellant here has soughtfor a declaration of his status as a tenant
in respect of the property, irrespective of who is the landlord. Since the
respondents, and not the landlord, have sought to infringe and dispute such
right, it is the respondents who are necessary parties to the suit and
accordingly arrayed as defendants. Neither the erstwhile owners nor Ashish
Roy dispute the tenancy rights of the appellant and, as such, they are not
necessary parties to the suit.
51. In view of the above discussions, this issue is also decided in favour of the
appellant, holding that the suit was not bad for non-joinder of necessary
parties.
52. In fine, we find that the learned Trial Judge failed to advert to the aforesaid
relevant documents which were exhibited on behalf of the plaintiff/appellant
as well as proceeded on erroneous application of law governing the field.
53. The impugned judgment is also tainted by perversity inasmuch as the
relevant clauses of the sale deeds of the defendants/respondents, in
particular the Third Schedule thereof, which circumscribes the Second
Schedule as well as the First Schedule, and the terms and conditions of the
sale deeds and their legal effect, were completely overlooked, as were the
Deed of Rehabilitation of Tenant and Lease Agreement, including the rent
receipts, produced by the plaintiff/appellant.
54. In such view of the matter, the impugned judgment and decree are bad in
law and on facts and are required to be set aside.
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55. Accordingly, F.A. No. 4 of 2019 and F.A. No. 5 of 2019 are allowed, thereby
setting aside the impugned Judgment and Decree dated September 18, 2018
passed by the learned Judge, Second Bench, City Civil Court at Calcutta in
Title Suit No. 1244 of 2011, whereby the plaintiff/appellant‟s suit was
dismissed and the respondents‟ counter claim was allowed. Consequentially,
we decree the said suit in favour of the plaintiff/appellant, declaring that the
plaintiff/appellant is a bona fide tenant in respect of the demarcated and
separated suit property comprised of four car parking spaces. A decree of
permanent injunction is also granted restraining the
defendants/respondents and their associates form disturbing the peaceful
possession and enjoyment of the plaintiff/appellant in respect of the said
property in any manner whatsoever.
56. The decree passed in the counter claim of the respondents, granting eviction
against the appellant, is also set aside.
57. There will be no order as to costs.
58. A formal decree be drawn up accordingly.
59. Interim applications, bearing CAN 1 of 2018 (Old No. CAN 8987 of 2018) in
connection with F.A. No.4 of 2019 and CAN 1 of 2018 (Old No. CAN 8990 of
2018) in connection with F.A. No.5 of 2019, are accordingly disposed of
consequentially.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Uday Kumar, J.)