Indira Devi v. Satwanti Devi

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** SAT/11/2023 Indira Devi Vs.

Satwanti Devi Mr. KMB Jayapal ... for the appellant January 9, 2024 [SR] Item No.10 The second appeal has come up for admission under Order 41 Rule 11 of the Civil Procedure Code. The defendant in the suit, being aggrieved by the judgment and decree dated December 04, 2023 passed by the learned District Judge at Port Blair in Title Appeal No.01 of 2023, affirming the judgment and decree dated December 14, 2022 in Title Suit No.12 of 2021 passed by the learned Civil Judge, Junior Division, First Court at Port Blair, has filed this appeal has been filed.

The plaintiff filed a suit for declaration that the plaintiff was the rightful owner in respect of the scheduled property, being one room in the first floor of the building (divided into two) consisting of a hall, one bed room and one kitchen standing upon survey plot no.8, measuring an area of 2400 sq.ft, situated under Aberdeen Village under Port Blair Tehsil, South Andaman District. Further prayer was recovery of possession of the scheduled property from the defendant. Permanent injunction, restraining the defendant from undertaking any construction or from doing any act which would amount to dispossession of the plaintiff from the suit premises, was also made.

The plaint case was that the plaintiff had acquired the said property on her own and was living in the said property with her son, Sanjay Rao. Sanjay Rao expired on January 21, 2020. After demise of the son, the widow of the defendant started torturing the plaintiff. Finding no option, the plaintiff moved the High Court at Calcutta in the Port Blair Circuit Bench for necessary relief, by filing a writ petition. The High Court granted liberty to the plaintiff to approach the Senior Citizens Maintenance and Welfare Tribunal, for necessary reliefs.

As the torture by the widow of the son reached to an extreme stage, which was beyond the tolerance by the plaintiff, the plaintiff asked the defendant to vacate the premises. The daughter-in-law, was in permissive occupation of the said premises. The defendant did not adhere to such request of the plaintiff and continued to remain in the premises and also tortured the plaintiff.

The plaintiff's further case was that the defendant was gainfully employed in the Administration and was earning a sum of Rs.1,00,000/- per month. She had an alternative inherited accommodation, left behind her father. She had no right to remain in the suit premises, after the permission granted by the plaintiff had been cancelled and the defendant had been asked to vacate the premises. The defendant filed her written statement and contested the suit. The plaintiff examined five witnesses. The defendant examined herself.

According to the defendant, she was residing in the premises with her husband. The defendant admitted that she

was residing in the property, as wife of Sanjay Rao. They were only occupying the ground floor, whereas, the other portion of the building was in the possession of the plaintiff. The plaintiff also ran a business under the name and style of "Andaman Tourist Cottage" from the premises. The plaintiff had other tenants. The allegation of the torture etc was denied. The defendant asserted her right to the said premises as widow of Sanjay Rao and it was stated that the plaintiff did not have any right to recover possession of the suit premises from the defendant, as she was in lawful possession of the property. Considered the records and the judgments of both the Courts. The plaintiff is admittedly the recorded tenant of the land bearing survey No.8 of an area measuring 2400 Sq.ft, situated at Aberdeen Village under Port Blair Tehsil, South Andaman District. The documents to such effect were tendered in evidence. The record of rights, receipts showing payment of rent to the government etc, were all exhibited in the proceeding.

On scanning the evidence of both the parties, it appeared that the entire property of 2400 sq.fts belonged to one Anand Rao. Subsequently, the land was mutated in the name of Altaf Ali S/o Tagar Ali, as per order No.NTPB on July 14, 2017. Finally, on the basis of mutual exchange, an order was passed by TPB in support of the registered deed vide RC No.1/83 dated March 10, 1983. The property was thus, recorded and mutated in the name of the plaintiff. The Courts came to the finding that such documents would indicate that the plaintiff had acquired the property from Altaf Ali, by way of a deed of mutual exchange.

The plaintiff exhibited the digital record of rights. The Patwari of the Aberdeen Circle, PW-3, produced the certified copy of the land records which show the entry of the name of the plaintiff. Such records were marked as Exhibits 6 & 6/1. Admittedly, the defendant did not dispute the right, title and ownership of the plaintiff in respect of the property in question.

Although Mr. Jayapal submits that the plaintiff, in the cross examination, stated that the property belonged to her husband, but the record reveals that the property was acquired by the plaintiff from one Altaf Ali by way of mutual exchange. No suggestion had been put to the plaintiff to the extent that the property was a joint property of the plaintiff and Sanjay Rao (Since deceased) or Sanjay Rao had inherited the said property. Sanjay Rao died in 2020. The question of Sanjay Rao having inherited the property from Anand Rao (grand father) would also not arise. Such was also not the defence case.

The cross examination of the defendant was taken into consideration by the learned Courts below and it was found that the defendant had admitted that she was residing in the premises after her marriage with her husband and continued to reside there, even after the death of her husband. She did not deny that the property belonged to the plaintiff. On the basis of the evidence on the record, the learned Courts were of the view that the plaintiff has established her right, title and interest in respect of the property in question and was entitled to evict the daughter-in-law, who was remaining in the premises under permissive occupation and

that such permissive occupation came to an end, the moment the plaintiff asked the defendant to vacate the premises in question. She was nothing more than a licensee. The contention of Mr.Jayapal, that section 14(1) of the Hindu Succession Act would apply in this case, is not accepted. As the plaintiff is the sole owner of the property in question and her son was only a licensee, the defendant could not have inheried the property under section 14(1) of the Hindu Succession Act, by virtue of her marriage. She was also a licensee. The income of the defendant, the security of her job and her inheritance from the parental side, were available in evidence.

Both the Courts below have meticulously considered the documentary evidence, which were the best evidence available. The plaint case and the defendant's case clearly indicated that the plaintiff had permitted her son to reside in the premises along with the daughter-in-law, after the marriage. Thus, the suit was decreed.

This Bench does not find any substantial question of law involved. Accordingly, the second appeal is dismissed. ( Shampa Sarkar, J. ) ( Tirthankar Ghosh, J. )