PARBATI DEBI Vs. BELARANI BASAK

JUDGEMENT

(1.) This is an appeal the judgment and decree passed by Shri J.K. Mitra, Judge, 4th Bench, City Civil Court, Calcutta dated 29th November. 1976, in Ejectment Suit No. 9 of 1975. The defendant is the appellant in this Court.

(2.) The plaintiff brought a suit for recovery of khas possession of one asbestos shed room on the ground floor on the eastern side of the courtyard in the premises No. 11/C, Kalakar Street, Calcutta. The suit was originally brought by Sm. Siva Bhabani Dasi. The original plaintiff converted her properties including the suit property into a trust property by executing a registered deed of trust dated 25.7.75 and by the said deed she made her only child Belarani Basak the sole trustee. After the execution of the said deed, the trustee filed an application for bringing her on record as the plaintiff in place of her mother Sm. Siva Bhabani Dasi and the said application was allowed. The case of the plaintiff is that the defendant was a monthly tenant in respect of the aforesaid premises at a rental of Rs 34/- per month payable according to Bengali calendar. The defendant previously committed defaults where upon the plaintiff instituted an ejectment suit in the City Civil Court on the ground of default only. The suit was numbered as Ejectment Suit No. 769 of 1967 which was finally disposed of by the learned Judge, 7th Bench, by his order passed on 5.12.68. The suit was decreed for costs only, the plaintiff's claim for a decree for eviction was dismissed on the ground that the defendant was a defaulter for the first time. Thereafter, the defendant again committed default in payment of rent in respect of the suit property since Chaitra, 1380 B.S. and hence, the present suit. It was contended before the learned Judge that the defendant was never a tenant under the present plaintiff in her personal capacity as alleged in the plaint. The defendant contended that she was a tenant of Debottor Estate of Shri Radhakanta Jew of which Sm. Siva Bhabani was shebait and trustee. The learned Judge negatived the contention of the defendant and found that the previous suit was also brought by Sm. Siva Bhabani Dasi in her personal capacity and that the present suit which was brought by Siva Bhabani Dasi in her personal capacity was quite maintainable and the defendant was a tenant under Siva Bhabani Dasi. On the question of default, the learned Judge found that the defendant committed default previously and as it was the first default she got protection under Sec. 17(4) of the Act in the previous suit. She again committed default and that being so, no protection was available to the defendant for the second default. In that view of his finding, the learned Judge decreed the suit. Being aggrieved, this appeal has been filed.

(3.) Mr. Monimohon Mukherji, learned Advocate appearing on behalf of the appellant, in the first place, contends that the learned Judge was wrong to hold that the plaintiff- was the owner of the suit premises. Mr. Mukherji contends that the learned Judge ought to have held that the original plaintiff was a shebait of the Shri Shri Radhakanta Jew Debottor Estate and as she instituted a suit in her personal capacity, the suit was not filed in proper form and ought to have been dismissed. In this connection Mr. Mukherji submits that the learned Judge was wrong in construing the rent receipts granted by the original plaintiff to have been granted in her personal capacity and not as shebait and trustee of the Debottor Estate. The learned Judge carefully considered this aspect of the case and found that barring the .bare contention of the defendant there was nothing on record to support the defence contention that Siva Bhabani Dasi was the shebait are trustee of the Debottor Estate of Shri Shri Radhakanta Jew and that the suit property formed a part of that Estate. P.W. 1 strongly denies the assertion of the defendant that the suit property is a part of the Debottor property and that Siva Bhabani is the shebait of the said property. Mr. Mukherji placed before us the rent receipts (Ext. A series) granted by Siva Bhabani Dasi. In the said rent receipts we find the words "Shri Shri Radhakanta Jew" and "Pratul Karta". From these words, Mr. Mukherji wanted to submit that these words show that the property was a debottor property and that Siva Bhabani was its shebai't. The learned Judge found that the words referred to above did not signify anything except qualifying the omniscient god by illustrative names. The receipts would show that Siva Bhabani realised rents from the defendant in her personal capacity and she was doing so from before 1357 B. S. On perusal of the rent receipts (Ext. A series) we find that all the rent receipts have been signed by Sm. Siva Bhabani Dasi and there is nothing to show that she has signed the receipts as shebait of the property. Again, all the receipts bear the seal of Sm. Siva Bhabani Dasi. In such circumstances, we agree with the learned Judge that the receipts by themselves do not establish that the suit property was debotter property and Siva Bhabani was shebait of the same. In this connection, it is worth mentioning that Siva Bhabani Dasi brought the earlier ejectment suit being Ejectment Suit No. 769 of 1967 against the defendant in her personal capacity. The said suit was decreed for costs against the defendant. Thus, on a consideration of all these facts and circumstances, we are of opinion that the learned Judge was right to hold that the suit property was not deboitor property and the suit which was brought by Siva Bhabani in her personal capacity was quite maintainable. In the next place, Mr. Mukherji contends that assuming that the present plaintiff can continue the suit as she was made a sole trustee in respect of the suit property during the pendency of the suit even them the present plaintiff Belarani Basak cannot take advantage of any default in payment of rent which was committed by the defendant earlier. It is true that a suit was brought by Siva Bhabani Dasi against the defendant on the ground of default and that being a case of first default the defendant was granted protection under Sec. 17(4) of the Act. It is the allegation that the defendant committed default subsequently and hence, the present suit has been brought. Mr. Mukherji submits that all the arrears of rent have been deposited by the defendant under Sec. 17(1) of the Act and the default is question was committed at a time when the present plaintiff was no where in the picture and that being so, the present plaintiff cannot take advantage of any default which might have been committed by the defendant at a time when the defendant was a tenant under the present plaintiff's mother Siva Bhabani Dasi. In this connection, Mr. Mukherji very much relies on the deed of trust (Ext. 4) and contends that there is no recital in the deed of trust that the arrear of rent, if any, was assigned to the present plaintiff by Siva Bhabani Dasi. Mr. Mukherji submits that the trust property has been valued at Rs. 98,00.00. That is the valuation of property. But the arrear of rent, if any, has not been mentioned in making the said valuation. In the absence of any assignment, the present plaintiff is not entitled to take advantage of any default which might have been made by the defendant at a time when she S. was a tenant under the original plaintiff. It may be noted that in Ext. 4 there is a recital to the following effect:- "The said property created under this deed is fully let out to respective tenants and the above named trustee shall be entitled to collect and realise all rents from the tenants, institute suit or suits for ejectment let out to the tenants ..............." Mr. Amal Kumar Ghosal, learned Advocate appearing on behalf of the respondent, relies very much on the above recitals and contends that these recitals very clearly indicate that the trustee was empowered by the trust deed to realise arrear rent. It is worth mentioning that in this case we are not very much concerned whether the present plaintiff is entitled to realise arrear rent. But the only point that awaits decision in the present appeal is, whether the default in payment of rent committed by the defendant at a time when she was a tenant under the original plaintiff will disentitle her from getting any protection under Sec. 17(4) of the Act, inasmuch as, the said default is a default for the second time. Mr. Ghosal relies very much on a Bench decision of this Court reported in Gerdhandas Jeramhai Vs. U.D. Banerjee & ors., 77 CWN 70. In this case, it has held "in the instant case there is admitted default for four months though this default was in respect of payment of rent to the previous landlords. The question has to be looked at not from the stand point what the landlord will get whether rent as such or only money due but whether tenant has defaulted in payment of rent due. Viewed in this way with reference to provisions in Sec. 13(1) and 17(4) proviso, the tenant appellant has forfeited his claim to protection against eviction. So far as the tenant is concerned, there can be no room for doubt that rent was payable by him whether to the transferor landlord or to the transferee landlord. If rent is payable and if rent is not paid, the default is a default in payment of rent and not merely a default in payment of money. If the view is taken that there cannot be any ejectment on the ground of default unless the default in payment of rent arises during the time of the landlord plaintiff then some serious consequences will follow. If the property devolves from father to son and if the default is made during the time of the father, then the son cannot sue the ejectment on the ground of default. Similarly, if the landlord's interest is transferred successively every two years or every one year then there can be no ejectment on the ground of default in payment of rent and the tenant can enjoy the property rent free. That is not the intention of the Legislature as can be found from the West Bengal Premises Tenancy Act, 1956". The point which arose for decision before the Division Bench arise in the present appeal. Mr. Mukherji, on the other hand, relies on a decision of a single Judge reported in Sree Rameswar Chand alias Sree Rameswar Chandra Chanda and another Vs. Sree Sadhan Chandra Dey and others, 75 CWN 478. In this case, it has been held.