KHAGENDRA LALL DUTTA AND ANR.

A v.

JACOB SOLE JACOB

AUGUST 17, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.] B

Tenancy Laws:

Residential accommodation-Tenancy of-Death of tenant and his successor-Suit for ejectment--Reliance on documents to establish sub-tenan- C cy-Held, in absence of any specific plea of sub-tenancy in written statement, no amount of evidence can be looked into in that behalf.

The appellant filed a suit for ejectment of the respondent from the suit premises alleging that the respondent was a tresspasser thereon. It was alleged that the appellant demised the suit premises to the original D tenant. After his death, his wife succeeded to the tenancy rights. After her death on 9.7.1981, when the appellant wanted to take possession of the property, the respondent obstructed, which led to the filing of the suit. The trial court decreed the suit. On appeal, the High Court dismissed the suit as not maintainable holding that the wife of the original tenant was alive E on the date of the suit. Aggrieved, the owner filed the appeal by special leave.

It was contended on behalf of the respondent that a sub-tenancy was created by acquiescence, as in the application of the respondent before the Rent Controller for fixation of the fair rent impleading the appellant as second respondent, the appellant did not take any action for the eviction on the ground of sub-tenancy.

Allowing the appeal, this Court

G HELD : 1. The fact that the wife of the original tenant died on 9.7.1981, i.e., before filing of the suit, not being in dispute, the tenancy rights created in 1940, came to an end. (805-A]

2. In the absence of any specific plea in the written statement qua the appellant that a sub-tenancy was created between the appellant and H

A the respondent by acquiescence, no amount of evidence can be looked into in that behalf. The pleas of limitation, estoppel etc. advanced in the written statement on which the respondent relies are too general and akin to those pleas which are regularly taken virtually in all written statements. The trial court has given a finding that there is no sub-tenancy and the Division B Bench of the High Court has not gone into that question. (805-E-F; HJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7587 of 1995.

From the Judgment and Order .dated 22.9.92 of the Calcutta High C Court in A.0.D. 130 of 1988.

P.K. Chatterjee, A. Bhattacharjee and R.P. Gupta for the Appellants.

AK. Ganguli and V. Krishnamurthy for the Respondents.

D The following Order of the Court was delivered :

Leave granted.

This appeal by special leave arises from the judgment of the Division Bench of the High Court of Calcutta dated 22.9.1992 made ill Appeal from -E : Original Decree No. 130/88. The facts are not in dispute.

The appellant had demised ground floor flat bearing No. 25A, situated in Royd Street, Calcutta to one Mr. Stayner in 1940. After his death, his wife Mrs. Stayner, succeeded to tenancy rights and she died on Jilly 9, 1981. Thereafter the appellant laid the suit for ejectment of the respondent from the premises with the plea that when the appellant had been to the demised premises to take khas possession, to their surprise, they found the respondent in the occupation of the suit premises. When possession was demanded, she obstructed. Consequently, treating the respondent as a tresspasser, the appellant laid the suit for eviction. The G trial court granted the decree for eviction. On appeal, the Division Bench set aside the decree solely on the ground that from an affidavit of Mrs.

Styner filed before the Metropolitan Magistrate, it appeared as if Mr.

Stayner was alive on the date of the suit; d without determining the tenancy of Mr. Stayner, the suit for ejectment was not maintainable; and H so, it dismissed the suit. Thus this appeal by special leave.

...

K.L. DUTIA v. J.S. JACOB 805

It is fairly not controverted by Shri Ganguli, learned senior counsel A for the respondent, that the tenant Mr. Stayner was dead when the suit was filed. It is also not disputed that Mrs. Stayner died on 9.7.1981. The consequence being that with the death of the tenant, the tenancy rights created in 1940 came to an end. The only question then remains is whether the respondent has any right to remain in possession of the suit premises B qua the landlord. In the plaint it was specifically pleaded that the respondent is a tresspasser and that she has no manner right to continue in possession. In the written statement nothing has been pleaded qua the landlord as to how a sub-tenancy has been created either by agreement or by acquiescence by the landlord. On the other hand, it is admitted that the appellant refused to accept the rent tendered by the respondent.

Shri Ganguli sought to contend that a sub-tenancy was created by acquiescence, as the appellant knew about the induction of the respondent into possession by Mrs. Stayner, and when the respondent filed a petition

in the civil court (rent controller) for fixation of the fair rent in which the D appellant was impleaded as second respondent, the former had not taken any action for eviction of the latter on the ground of sub-tenancy. He also seeks to rely upon a compromise decree said to have been recorded by the High Court on the original side between Mrs. Stayner and the respondent admitting sub-tenancy rights of the respondent.

In the absence of any specific plea in the written statement qua the appellant that a sub-tenancy was created between the appellant and the respondent by acquiescence of the appellant, no amount of evidence can be looked into in that behalf. It is a well settled principle of law and needs F no elaborate consideration. Shri Ganguli fairly conceded that there is no such specific plea. He, however, pointed out that in para 2 of the written statement plea of limitation, estoppel etc. had been raised, which would show that the respondent has pleaded acquiescence in the sub-tenancy as well. We cannot agree, as the pleas advanced in para 2 are too general and akin to those pleas which are regularly taken virtually in all written state- G ments.

In the absence of any specific plea of sub-tenancy qua the appellant, no amount of evidence can be looked into in that behalf. The trial court has given a finding that there is no sub-tenancy and the Division Bench has H

A not gone into that question. We have applied our mind and find no substance in the case of the respondent.

The decree of the appellate court is set aside and that of the trial . court is confirmed. The appeal is accordingly allowed with costs throughout.

R.P.

Appeal allowed.