Case Note & Summary
The matter came before the Supreme Court by special leave against the judgment of the Division Bench of the Calcutta High Court dated 22.9.1992 in Appeal from Original Decree No.130/88. The litigation concerned the ejectment of the respondent from a ground floor flat bearing No.25A, Royd Street, Calcutta. The appellant had demised the premises to one Mr. Stayner in 1940. After his death, his wife Mrs. Stayner succeeded to the tenancy rights and she died on July 9, 1981. Thereafter, the appellant found the respondent in occupation of the suit premises and, upon refusal to hand over possession, treated her as a trespasser and filed a suit for eviction. The trial court granted a decree for eviction. On appeal, the Division Bench set aside the decree solely on the ground that an affidavit of Mrs. Stayner filed before the Metropolitan Magistrate suggested that Mr. Stayner was alive on the date of the suit, and without determining his tenancy the suit was not maintainable; accordingly, it dismissed the suit. The appellant then approached the Supreme Court. The respondent's senior counsel fairly conceded that the tenant Mr. Stayner was dead when the suit was filed and that Mrs. Stayner died on 9.7.1981. Thus, the tenancy rights created in 1940 came to an end. The only remaining question was whether the respondent had any right to remain in possession qua the landlord. The plaint specifically pleaded that the respondent was a trespasser with no manner of right. The written statement contained no specific plea qua the landlord as to how a sub-tenancy had been created either by agreement or by acquiescence. It was admitted that the appellant refused to accept rent tendered by the respondent. The respondent's counsel sought to argue that a sub-tenancy was created by acquiescence because the appellant knew of the induction of the respondent by Mrs. Stayner, and because in a fair rent petition filed by the respondent before the rent controller the appellant was impleaded as second respondent but did not evict the respondent on the ground of sub-tenancy. Reliance was also placed on a compromise decree said to have been recorded between Mrs. Stayner and the respondent admitting sub-tenancy rights. The Supreme Court held that in the absence of a specific plea in the written statement qua the appellant, no amount of evidence could be looked into on that behalf. The respondent's counsel fairly conceded that there was no specific plea, but pointed to paragraph 2 of the written statement raising pleas of limitation, estoppel, etc. The Court disagreed, observing that those pleas were too general and akin to pleas regularly taken in virtually all written statements. The trial court had given a finding that there was no sub-tenancy, and the Division Bench had not gone into that question. The Supreme Court applied its mind and found no substance in the respondent's case. Accordingly, the decree of the appellate court was set aside and that of the trial court was confirmed. The appeal was allowed with costs throughout.
Headnote
A) Landlord and Tenant - Termination of Tenancy - Death of Tenant - Not mentioned Act - Upon death of original tenant and his wife, tenancy rights created in 1940 came to an end; landlord entitled to treat respondent as trespasser absent lawful sub-tenancy. Held that respondent had no right to remain in possession qua landlord; appellate court erred in dismissing suit on assumption original tenant alive (Paras 1-2). B) Civil Procedure - Pleadings - Specific Plea Requirement - Not mentioned Act - Sub-tenancy by acquiescence cannot be established absent specific plea in written statement; general pleas of limitation, estoppel insufficient. Held that no amount of evidence can be looked into on an unpleaded case; trial court finding of no sub-tenancy confirmed (Paras 1-2).
Issue of Consideration
Whether the respondent had any right to remain in possession of the suit premises as a sub-tenant qua the landlord, and whether the suit for ejectment was maintainable after the death of the original tenant and his wife.
Final Decision
Appeal allowed; decree of appellate court set aside; trial court decree for eviction confirmed; costs throughout awarded to appellant.
Law Points
- Tenancy rights created in 1940 came to an end with the death of the tenant and his wife
- absence of specific plea of sub-tenancy in written statement precludes evidence
- general plea of limitation and estoppel insufficient to establish sub-tenancy by acquiescence
- well settled principle that no amount of evidence can be looked into on a plea not raised
- landlord entitled to treat occupant as trespasser absent lawful sub-tenancy
