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PETITIONER: KHAGENDRA LALL DUTTA & ANR.

       Vs.

RESPONDENT: JACOB SOLE JACOB

DATE OF JUDGMENT17/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCC  (5) 446        1995 SCALE  (5)32

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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  in Appeal  from Original  Decree No. 130/88. The facts are not in dispute.      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 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. Consequently, 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.      It is  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

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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 respondent.      Shri Ganguli  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.      In the  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 written statements.      In the  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 respondent.      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.