ANJALI DEBI Vs. JOHN STEPHEN

JUDGEMENT

(1.) This is an appeal by the plaintiff-landlord against a judgment of reversal dismissing her suit. The plaintiff's case is that she is the owner of the suit premises and the defendant had been a tenant of the same at a monthly rent of Rs.100/- payable according to the English calendar. The tenancy was governed by the West Bengal Premises Tenancy Act, 1956.The ground of eviction was default in payment of rent since July, 1955, the suit being instituted on January 22, 1958. The plaintiff determined the tenancy of the defendant by a notice to quit with the expiry of the month of June, 1957 and the said notice was duly received by the defendant. As the defendant failed to vacate the suit premises in spite of the notice, the instant suit was instituted praying for recovery of possession and mesne profits.

(2.) The defendant contested the suit by filing a written statement and contending, inter alia, that there was no relationship of landlord and tenant between the parties. It was the further case of the defendant that he was the owner of the suit premises and he sold the property to the plaintiff for a consideration of Rs. 10,000/-, even though the value of the property, according to the Municipal valuation, was Rs. 26,320/-. The transaction was subject to an oral agreement entered between the parties on December 30, 1957 whereby the plaintiff agreed to reconvey the property to the defendant on receipt of Rs. 10,000/- with interest on Rs.7,000/-, calculated at the rate of Rs.4% per annum and such transaction was to be completed by May 1, 1959. It was pat-payment of the consideration. The defendant also brought a suit in the High Court for Specific Performance of Contract or for damages or cancellation of the plaintiff's conveyance. Further, the plaintiff retained a sum of Rs. 3,000/- for paying a loan of the defendant in favour of the Calcutta Loans Limited, but that amount was not paid and the said company instituted a suit against the defendant and obtained a decree which was affirmed on appeal for a sum of Rs. 2,600/- with costs. The decretal dues were payable by instalments whereof certain amounts had been paid by the defendant. The defendant further stated that he was ready to perform his part of the contract but the plaintiff failed and neglected to execute the reconveyance. In these circumstances the defendant could not be said to be a tenant under the plaintiff and, accordingly, the suit was not maintainable. An additional written statement was filed subsequently by the defendant where it was stated that the purported sale was an ostensible safe, the real intention was to mortgage the property for securing the amount stated as consideration, advanced by the plaintiff to the defendant. For all these reasons the defendant contended that the plaintiff was not entitled to a decree as prayed for in the suit.

(3.) The suit was tried on evidence before the learned Munsif who came to the conclusion that the evidence sought to be adduced by the defendant to contradict the terms of the sale was inadmissible in view of the provision of sections 91 and 92 of the Evidence Act unless there was an agreement for reconveyance in writing. It was further held that the defendant being in possession of the suit premises it was also incumbent on him to explain his status regarding his possession and that he could stay only as a tenant or a licensee. It was further held that even though the defendant paid Corporation Tax for some time after the conveyance, it was also on record that the plaintiff latter on mutated her name in the Corporation records and non-payment of the Municipal Tax for some time could not colour the plaintiff's title. It was also held that P.W. 1, the husband of the plaintiff proved the counterfoil of rent receipt. Ext. 2 to establish the tenancy and the case of the plaintiff was established by the signature of the defendant on the counterfoil, marked Ext. 2(a). The learned Munsif himself compared this signature, which the defendant denied having executed with the admitted signatures on record and contained in the written statement and from such comparison he came to the conclusion that Ext. 2(a) was the signature of the defendant, and this established the tenancy as claimed by the plaintiff. Further, there was a sum of Rs. 100/- which was remitted by the defendant as rent. In the view that was taken the suit was decreed for recovery of possession and a sum of Rs. 200/- was also tentatively decreed as mesne profits.