KHAGENDRA LALL DUTTA AND ANR. versus JACOB SOLE JACOB

Citation: [1995] SUPP. 2 S.C.R. 803 · Decided: 17-08-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 
F 
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 
803 
804 
SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R. 
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. 
F 
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. 
St~yner 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. 
0 
... 
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 pl

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