Lall Dutta & Anr Vs. Jacob Sole Jacob  INSC 407 (17 August 1995)
K. Ramaswamy, K. Hansaria B.L. (J)
1995 SCC (5) 446 1995 SCALE (5)32
O R D
appeal by special leave arises from the judgment of the Division Bench of the
High Court of Calcutta dated 22.9.1992 made in Appeal from Original Decree No.
facts are not in dispute.
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 July 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.
treating the respondent as a trespasser, the appellant laid the suit for
eviction. The 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. Stayner filed before the Metropolitan Magistrate, it appeared as if Mr.
Stayner was alive on the date of the suit; and without determining the tenancy
of Mr. Stayner, the suit for ejectment was not maintainable; and so, it
dismissed the suit. Thus this appeal by special leave.
fairly not controverted by Shri Ganguli, learned senior counsel 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 qua the landlord. In the plaint it
was specifically pleaded that the respondent is a trespasser 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
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 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.
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 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
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 not gone into that
question. We have applied our mind and find no substance in the case of 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.