SUDHENDU NATH MALLICK,J. - (1.) THE instant Second Appeal has been preferred by the landlord plaintiff/appellant, a partnership firm against the judgment and decree of dismissal passed by the learned additional District Judge, 3rd Court, Alipore dated 27.3.1987 affirming the same dated 30.4.1985 passed by the learned Assistant District Judge, 4th Court, Alipore in Title Suit No. 16 of 1984.
(2.) THE plaintiff/appellant's case in short is that the defendants/respondents (husband and wife) were monthly tenants in respect of the suit property at a rental of Rs. 1,500/- (Rs. 1125/- towards rent and Rs. 375/- towards service charges) per month payable according to English Calendar to the plaintiff. It is the specific case of the plaintiff/appellant that subsequently the defendants agreed in writing to deliver vacant possession of the suit premises to the plaintiff on the expiry of the month of April, 1981. But the defendants did not vacate the suit premises in terms of their written agreement and, as such, the above suit was filed for their eviction under section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956. The defence contention before the Courts below is that at the time of the talk of tenancy and agreement of tenancy with the plaintiff in the last week of April, 1978 at the instance of the existent plaintiff/landlord, they had to execute an undated letter of tenancy along with a letter of surrender and had to pay Rs. 10,000/- as advance towards the rent to the plaintiff in order to get the tenancy as they were in dire need of some accommodation in Calcutta. The undated letter of tenancy and the undated letter of surrender had to be signed by them for providing the landlord with a weapon for commanding good behaviour from the tenants. It is the specific case of the defendants that the letter of surrender had to be signed first by them which was followed by the letter of tenancy signed by the parties. According to the defendants there was no necessity for them as such after the creation of the tenancy to surrender the tenancy and vacate the suit premises by the end of April, 1981 and that there was no such clause in the letter of tenancy that the tenancy was for a limited period. According to the defendants, the alleged letter of tenancy is neither a legal and valid notice under the provisions of the West Bengal Premises Tenancy Act nor it can be determined as a voluntary act on their part. It is their case that the plaintiff by creating the undated letter of surrender had practised fraud upon the Statute and, as such, was not entitled to get any benefit out of the same. The trial Court dismissed the suit on accepting the defence plea that the letter of tenancy as per Ext. 3 is a void document as the purported date of its execution was put in by the landlord, subsequently after its execution and that similarly the letter of surrender was also subsequently interpolated by the plaintiff by putting a date thereon to suit his purpose after creation of the tenancy. The trial Court on consideration of the evidence on record has come to a finding that the purported letter of surrender as per Ext. 3 cannot be treated as a notice under section 13(1)(k) of the West Bengal Premises Tenancy Act as the tenants did never agree in writing with the landlord to deliver vacant possession of the suit premises subsequent to the creation of the tenancy. It is the categorical finding of the trial Court that the purported letter of surrender was obtained by the landlord before possession of the suit premises was delivered to the defendants on creation of the tenancy.
(3.) THE learned First Appeal Court has concurred with the above findings of facts made by the trial Court. The relevant part of the trial Court's judgment may be quoted below :- "The difference between Ext. 3 and Ext. 'C' is that Ext. 3 bears a date on the right hand top on the first page and it is absent from Ext. 'C'. No explanation was furnished by Shiladitya as to the absence of the date from the first page of Ext. 'C' which is the signed carbon copy of Ext. 3. I take the pain to say that the PWs were not confronted with Ext. E. P.Ws. did not tell anything about the supply of carbon copy of Exts. 3 and 4 to the defendants. It means they did not emphatically deny the fact. The distinction between Exts. 4 and E is that Ext. 4 has a typed date on the right hand top corner and Ext. E is devoid of it. It also bears the signature of the defendants. I have previously pointed out that Ext. 'B' the money receipt for Rs. 10,000/- signed by S. Sarkar for the plaintiff-company bears no date. All the relevant documents Exts. 3, 4, B, C and E are typed documents on the conquest papers of the same colour. It is not the case of the plaintiff that there were dates on Ext. 'B', 'C' and 'E' and the defendants have managed to erase. The contents of Ext. 3 and Ext. C are the same and the contents of Exts. 4 and are the same. Exts. C and E are really carbon copies. The irresistible conclusion must be that the plaintiff subsequently put the dates on Exts. 3 and 4 to achieve his aim. The PWs said that the letter of tenancy was typed and signed on 30.4.1978 which is belied by Ext. 3 itself, because apparently it is dated 29.4.1978"....... "Considering the peculiar facts and circumstances and evidence discussed above, I come to the conclusion that the defendants were successful in proving their case and the plaintiff miserably failed to substantiated his plea. I further hold that the plaintiff by exercising undue influence obtained Ext. 4 from the defendants who had no alternative than to swallow it either at the time of or immediately before the execution of Ext. 3. Plaintiff also put the date on Exts. 3 and 4 beyond the knowledge and consent of the defendants for evil purpose. Plaintiff's actions are condemned. The execution of Ext. 4 is not a wilful act of the defendants. Ext. 4 did not come into being subsequent to the creation of the tenancy. The defendants cannot be said to have agreed in writing with the landlord to deliver vacant possession of the premises and they did not violate the provisions of section 13(1)(k) of the W.B.P.T. Act. Plaintiff is not entitled to get a decree as prayed for. The learned, Assistant District Judge, Alipore rightly dismissed the suit on contest with cost." ;