Calcutta High Court (Appellete Side)
Sri Krushan Chandra Nayak vs Gobinda Charan Pyne on 23 March, 2026
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
2026:CHC-AS:467-DB
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon‟ble Mr. Justice Sabyasachi Bhattacharyya
&
The Hon‟ble Mr. Justice Supratim Bhattacharya
FAT No. 561 of 2025
Sri Krushan Chandra Nayak
-vs-
Gobinda Charan Pyne
For the appellant : Mr. Anshunath Chakraborty.
For the respondent : Mr. Anirban Pal.
Heard on : March 23, 2026.
Judgment on : March 23, 2026.
Sabyasachi Bhattacharyya, J.:
Re: CAN 2 of 2026 (condonation)
1. The present application is for condonation of the delay of about
twenty-one days in preferring the appeal.
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2. Learned counsel for the appellant draws the attention of the Court
to the pleadings in the condonation application to the effect that
the appellant works as a sweeper under the Kolkata Municipal
Corporation and is required to perform regular and continuous
duties. It has further been pleaded that owing to his service
obligations and financial constraints, the appellant could not
immediately take steps for filing the appeal and required a
reasonable time to obtain relevant case records and to contact
his learned Advocate. Although the certified copies were applied
for on the very next day after passing of the impugned judgment
and decree, that is, on September 26, 2025, those were made
ready and delivered on October 28, 2025.
3. Yet, the appellant contacted his learned Advocate for the purpose
of presenting the present appeal only on December 10, 2025 for
the reasons indicated above. The appeal was ultimately filed on
December 18, 2025.
4. Learned counsel appearing for the respondent contends that
there is no plausible explanation furnished in the application for
the delay between October 28, 2025, when admittedly the
certified copies of the impugned judgment and decree were made
ready and delivered to the appellant, and December 10, 2025,
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when the appellant first approached his learned Advocate for the
purpose of preferring the appeal.
5. Learned counsel cites Balwant Singh Vs. Jagdish Singh and
others reported at (2010) 8 SCC 685 in support of the proposition
that the applicant, who seeks the aid of the Court for exercising
its discretionary power for condoning the delay, is expected to
state correct facts and not state lies before the Court.
Approaching the Court with unclean hands itself, it was further
observed by the Hon‟ble Supreme Court, is a ground of rejection
of such application.
6. The “unclean hands” analogy is, unfortunately and ironically,
applicable to the circumstances of the appellant in a different
context. The appellant is a person employed with the Kolkata
Municipal Corporation and works as a sweeper. By its very
nature, such job demands that the appellant has to report for his
work regularly.
7. We also take note of the fact that the appellant comes from the
marginalized sections of Society and, as such, the averment
regarding financial constraints and his job requirements, which
prevented the appellant from taking steps in time, are quite
credible in our opinion.
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8. Hence, from the explanations offered in the condonation
application, in paragraph no. 3 in particular, this Court finds that
sufficient explanation for the delay has been made out.
Accordingly, the “unclean hands” theory propounded in Balwant
Singh (supra) is not applicable to the present case.
9. Even otherwise, we do not find any mala fides or gross
negligence on the part of the appellant to refuse to condone the
miniscule delay of only twenty-one days in preferring the appeal.
10. Accordingly, CAN 2 of 2026 is allowed on contest, thereby
condoning the delay in preferring FAT No. 561 of 2025.
11. The said appeal is deemed to stand registered and
admitted.
12. There will be no order as to costs.
Re: FAT No. 561 of 2025
With
CAN 1 of 2026
13. The appeal and the stay application are taken up together
for hearing, in view of the short ambit of the appeal.
14. By the impugned judgment and decree, the learned trial
Judge granted a decree of eviction against the
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defendant/appellant on the premise that the defendant is a
trespasser in respect of the suit premises, taking into
consideration the effect of Section 2(g) of the West Bengal
Premises Tenancy Act, 1997 (in short, “the 1997 Act”).
15. Learned counsel appearing for the defendant/appellant
contends that the plaintiff/respondent has placed reliance on a gift
deed allegedly executed by his mother, who became the owner of
a demarcated portion of the larger joint family property, which
comprises the suit premises, by dint of an alleged partition deed.
16. However, apart from the fact that such partition deed was
never produced, which raises a doubt as to whether the property
still remains joint and there remains other co-owners of the
plaintiff‟s mother, the property descried in the schedule of the gift
deed, which was exhibited in the suit, does not tally with the
schedule of the plaint.
17. Thus, the ownership in respect of the suit property has not
been clearly established by the plaintiff merely by virtue of
production of the said gift deed.
18. Secondly, learned counsel for the appellant argues that in
the said gift deed, there is no mention of transfer of the actionable
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claim in respect of the right to evict the tenant from the subject
property in favour of the plaintiff.
19. Learned counsel submits that there is not even any mention
of the existence of a tenancy in the gift deed, despite the mother
of the present defendant being a tenant in respect of the suit
property at the relevant juncture.
20. Thus, it is argued that in the absence of transfer of such
actionable claim, the eviction suit is hit by the provisions of
Section 130 of the Transfer of Property Act, 1882 (hereinafter
referred to as “the Act of 1882”), which envisage that an
actionable claim is required to be specifically transferred by a
written document. In the absence of such transfer, the eviction
suit, it is submitted, was not maintainable at the behest of the
plaintiff/respondent.
21. Thirdly, learned counsel argues that the other co-
owners/co-sharers/co-landlords in respect of the suit property
have not been impleaded in the suit.
22. Although the plaintiff claims himself to be the exclusive
owner of the suit property, in the absence of any clear
demarcation of the rights of landlordship of the plaintiff /
respondent and / or his predecessor-in-interest / mother, the suit
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was not maintainable at the behest of the plaintiff alone, without
impleading the other co-owners/co-landlords.
23. Learned counsel argues further that the contemplation of a
“lessor” under Section 109 of the Act of 1882 is distinct from the
definition of “landlord” in Section 2(c) of the 1997 Act.
24. The landlordship under the 1997 Act, it is argued, does not
automatically get transferred along with the property merely by
dint of a deed transferring title in the property, in the absence of
any specific assignment of the right to evict the tenant.
25. Learned counsel further points out that there was no letter
of attornment at any point of time, on the supposed transfer of
title in favour of the plaintiff, either from the end of the
transferor/mother of the plaintiff or the transferee, that is, the
plaintiff/respondent himself.
26. The above aspects were overlooked by the learned Trial
Judge. Thus, it is argued that the impugned judgment is vitiated
on all the above counts.
27. Learned counsel appearing on behalf of the
plaintiff/respondent contends that there was clear admission in
the appellant‟s written statement with regard to the averments
made in paragraph no. 5 of the plaint, to the effect that Bhikari
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Nayak, the father of the defendant and the original tenant, died on
October 26, 2011 and thereafter his spouse Sita Devi Nayak also
died on December 22, 2017.
28. In paragraph no. 9 of the written statement, which dealt with
the said averments of the plaint, there was evasive denial
inasmuch as the defendant stated that the statements made in
paragraph nos. 4 and 5 of the plaint were partly matters of record
and partly denied, without categorically indicating that the above
material averments were specifically denied.
29. Although the defendant/appellant pleaded that the schedule
of the suit premises was not fully described, the subsequent plaint
averments as to the dates of death of the parents of the
defendant and that the defendant was not a dependant of his
father, the original tenant, were not denied at all.
30. In such context, learned counsel for the plaintiff /
respondent cites a judgment in the case of Rajiv Ghosh Vs. Satya
Narayn Jaiswal reported at 2025 SCC Online SC 751 where the
Hon‟ble Supreme Court held that admissions made in pleadings
or otherwise, whether orally or in writing, can form the basis for a
judgment and that the court has discretionary power to pronounce
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judgment provided the admissions are clear, unequivocal and
unconditional.
31. In the said report, the Hon‟ble Supreme Court further
observed that the High was justified in decreeing the eviction suit
based on specific admissions in the written statement as to status
and termination of tenancy due to statutory limitation under
Section 2(g) of the 1997 Act.
32. It is argued that in the present case as well, the said ratio is
clearly applicable in view of the admissions in paragraph no. 9 of
the written statement vis-Ã -vis the averments made in paragraph
no. 5 of the plaint, as indicated above.
33. Furthermore, in paragraph no. 9 of the written statement, it
was admitted that the heirs and legal representative of the
original defendant, namely, Bhikari Nayak, had been depositing
rent in favour of the plaintiff, along with other legal heirs of the
original landlord, with the Rent Controller.
34. It is contended that by such pleadings in the written
statement, the defendant categorically admitted the landlordship
of the plaintiff and as such, cannot now deny the same.
35. Learned counsel further argues that the learned Trial
Judge, in the impugned judgment, considered Gopi Vs. Ballabh
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Vyas, reported at (2022) 19 SCC 204, to lay down the proposition
that a bare perusal of Section 109 of the Transfer of Property Act
would reveal that if a landlord transfers the property leased out or
any part of it, the transferee, in the absence of any contract to the
contrary, shall posses all the rights of the landlord. Thus, the
inevitable consequence of the transfer of a leased-out property by
the landlord in accordance with law to a third party, in the
absence of a contract to the contrary, is that the third party
concerned would not only become its owner having title but also
would step into the shoes of the vendor as the landlord in relation
to the lease holder at the relevant point of time.
36. In such circumstances, the Hon‟ble Supreme Court held
that the findings of the courts below in the said case, that there
exists jural relationship of landlord and tenant between the
respondent and the appellant, could only be held as the correct
and lawful conclusion in the light of the evidence on record based
on the legal position.
37. Thus, it is argued that the appellant‟s contention to the
effect that the non-mention of the tenancy or non-assignment of
the “actionable claim” to evict the tenant in the gift deed vitiates
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the rights of the plaintiff vis-Ã -vis the present eviction suit, is not
sustainable.
38. Learned counsel for the plaintiff / respondent thus submits
that the appeal ought to be dismissed.
39. Learned counsel appearing for the appellant, in rejoinder
arguments, submits that in Gopi Vs. Ballabh Vyas (supra), the
Hon‟ble Supreme Court was considering a situation under
Section 109 of the Act of 1882, which is distinct and different from
a situation under the 1997 Act, the latter statute categorically
providing the definition of „landlord‟ in Section 2(c).
40. Hence, it is argued that the ratio of the said judgment was
erroneously applied in the present case by the learned Trial
Judge.
41. Further, learned counsel for the appellant reiterates that the
dispute as to the identity of the suit property and the property
transferred by the gift deed in favour the plaintiff/respondent has
not been addressed by learned counsel for the respondent in his
arguments.
42. Upon hearing learned counsel for the parties, it transpires
that one of the plinths of the challenge to the impugned judgment
and decree is the purported discrepancy between the schedule of
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the gift deed, through which the plaintiff claims title, and the
schedule of the plaint.
43. However, we find that throughout the written statement,
such objection as to the identity between the suit premises and
that owned by the plaintiff was never raised.
44. To justify such omission, learned counsel for the appellant
has cited the non-filing of the gift deed along with the plaint at the
relevant juncture, due to which purportedly the defendant could
not specifically raise the question of identity between the
schedules of the plaintiff‟s gift deed and the plaint.
45. However, we cannot accept such contention, since it was
always open to the defendant/appellant to seek an amendment to
its written statement or to file an additional written statement,
raising a dispute as to such identitly, upon the gift deed being
disclosed by the plaintiff / respondent in evidence.
46. That apart, nothing prevented the defendant/appellant from
seeking discovery of the gift deed, which was specifically
mentioned in the plaint, in the suit.
47. Having not done so, nor having raised any dispute as to
identity of the property during arguments before the trial court as
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such, the defendant/appellant cannot be permitted to raise such
question for the first time before the appellate court.
48. That apart, we find that the descriptions of the properties in
the schedule of the gift deed relied on by the plaintiff and that
described in the plaint of the present suit are more or less similar.
49. Certain minor discrepancies which have been pointed out
by the defendant, such as the character of the roof of the one-
storied shed being mentioned as a “tin shed structure” in the gift
deed whereas the same has been described in the plaint as
“partly tile and partly corrugated shed”.
50. However, such minor deviation in the description of the
nature of the roof, more so since the roof itself is of a temporary
nature and may be altered from time to time, cannot lead to the
automatic conclusion that the two properties are different.
51. Moreover, it transpires from a comparison between the two
schedules that the premises described in the schedule to the
plaint of the present suit is a room (with bath and privy) only,
which is situated within a portion of the larger premises which
was gifted to the plaintiff by his mother, measuring about 4
kathas, 3 chitaks and 15 square feet, which was a larger plot not
confined merely to the one-storied structure.
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52. Although there is difference between boundaries given in
the two schedules-in-question, the reason for the same is
obvious, since the suit property has been described in the plaint
schedule to be bounded on its Southern and Western sides by
the “plaintiff‟s possession” which all the more indicates that the
subject matter of the suit, being only a room with bath and privy,
is a smaller portion carved out from the larger stretch of property
given to the plaintiff by his mother by dint of the gift deed.
53. In any event, having not raised the said issue before the
learned trial Court, either in pleadings or during arguments, it
does not lie in the mouth of the defendant to raise the purported
issue of identity of the suit property at this appellate stage.
54. The next question which has been raised by the
defendant/appellant is whether the plaintiff acquired the right to
sue for eviction without any specific assignment of any right with
regard to the tenancy in the suit property being transferred
specifically by dint of the gift deed executed by the plaintiff‟s
mother in his favour.
55. Although learned counsel for the appellant seeks to draw a
distinction between the position under the Act of 1882 and under
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the 1997 Act vis-Ã -vis such transfer, in essence, there is no
distinction between the first principles governing the two.
56. Section 109 of the Act of 1882 provides, inter alia, that if the
lessor transfers the property leased, or any part thereof, or any
part of his interest therein, the transferee, in the absence of a
contract to the contrary, shall possess all the rights and, if the
lessee so elects, be subject to all the liabilities of the lessor as to
the property or part transferred so long as he is the owner of it.
57. On the other hand, Section 2(c) of the 1997 Act defines the
term “landlord” in an inclusive manner, to include any person
who, for the time being, is receiving or is entitled to receive the
rent for any premises, whether on his own account or on account
of or on behalf of or for the benefit of any other person.
58. Thus seen, such definition in Section 2(c) of the 1997 Act is
not only inclusive but operates in a wide spectrum, to include not
only owners but any person who is even entitled to receive the
rent for any premises.
59. In such context, Section 130 of the Act of 1882 is required
to be looked into, since the defendant/appellant rests his case
thereon, vis-Ã -vis non-transfer of actionable claim.
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60. Sub-section (1) of Section 130 provides that the transfer of
an „actionable claim‟, whether with or without consideration, shall
be effected only by the execution of an instrument in writing
signed by the transferor or his duly authorized agent and shall be
complete and effectual upon the execution of such instrument.
61. To get to the root of the said concept, we are also to look at
the definition of the term “actionable claim” as provided in Section
3, which is the interpretation clause of the Act of 1882.
“Actionable claim” as defined therein means “a claim to any debt,
other than a debt secured by mortgage of immovable property or
by hypothecation or pledge of moveable property, or to any
beneficial interest in movable property not in the possession,
either actual or constructive, of the claimant, which the Civil
Courts recognize as affording grounds for relief, whether such
debt or beneficial interest be existent, accruing, conditional or
contingent”.
62. It is, thus, obvious that the incidents of tenancy in respect of
an immovable property are not covered by the said definition,
thus, taking a situation as the present one beyond the purview of
Section 130 of the Act of 1882 itself. The incidents of a tenancy
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are neither “beneficial interest in movable property” nor a “claim
to any debt” or a claim of like nature.
63. Hence, the argument as to non-transfer of the tenancy and
its incidents or absence of specific mention of the same in the gift
deed is a non-issue in the present lis.
64. Even otherwise, the concept of an „actionable claim‟ is in
the nature of a „chose in action‟, being an inchoate right to initiate
a legal action on the strength of some legal or de facto right of a
party going with the property. A tenancy, as opposed thereto, is a
specific encumbrance on a property. When the entire property is
transferred, along with the entire bundle of rights associated with
it, to a transferee, either by gift or by some other device, the rights
of the original owner vis-Ã -vis the tenant are automatically
transferred to the transferee.
65. As held by the Hon‟ble Supreme Court in Gopi vs. Ballav Vyas
(supra), such a transfer automatically confers a right to sue on the
basis of the jural relationship of landlord and tenant on the
transferee. Such proposition laid down by the Hon‟ble Supreme
Court, although rendered in the context of Section 109 of the Act
of 1882, is not limited to a lessor-lessee relationship under such
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statute alone but is in the nature of a first principle, applicable
across the board to similar jural relationships under all statutes.
66. As such, we do not find substance in the contention of the
appellant that in the absence of a specific mention of the tenancy
or any devolution of right through the said instrument to sue the
tenant, such right was not automatically transferred to the
transferee.
67. Hence, the said argument is also not tenable in the eye of law.
68. Thirdly, although the appellant has raised a question as to
whether there were other co-landlords/co-owners of the property
who were required to be impleaded in the property, in view of the
evidence on record, the learned Trial Judge came to a categorical
finding that upon partition, a specific portion of the larger joint
property was allotted to the mother of the plaintiff and
subsequently, gifted to the plaintiff by his mother.
69. The concept of co-owners or co-landlords, thus, is not apt in the
circumstances.
70. Even otherwise, it is trite law that one of the co-owners has the
right to sue a tenant of his, unless it is specifically shown that the
other co-owners dispute such legal action.
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71. Hence, irrespective of whether the plaintiff was an exclusive
owner or a co-owner of the suit premises, the plaintiff had full
rights to sue the defendant.
72. A more cardinal issue cannot also be overlooked in the above
context.
73. In the present case, the appellant was nothing more than a
trespasser, not even being covered by Section 2(g) of the 1997
Act, in view of the doctrine of non-traverse. In paragraph no. 9 of
the written statement, which dealt with paragraph nos. 4 and 5 of
the plaint, there was no specific denial on the part of the
defendant/appellant as to the categorical averment of the dates of
death of the original tenant and his wife, respectively the parents
of the present defendant/appellant, much prior to the period of
five years from the date of institution of the suit.
74. Even otherwise, the specific averment that the
defendant/appellant was not a dependant of the original tenant at
the time of the demise of the original tenant, as averred in
paragraph no. 5 of the plaint, has not been denied at all by the
defendant, either in paragraph no. 9 or any other paragraph of the
written statement. Hence, the defendant was not even entitled to
get the protection for five years afforded by Section 2(g) of the
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1997 Act from the date of demise of the original tenant. Hence,
the argument as to the title of the plaintiff does not lie in the
mouth of the defendant/appellant, who is merely a trespasser and
not even a tenant in respect of the suit property at any point of
time.
75. That apart, it is rightly pointed out by learned counsel for the
plaintiff/respondent that in the written statement, it was admitted
by the defendant that he had been paying rent, inter alia, in the
name of the plaintiff before the Rent Controller, thereby clearly
admitting the landlordship of the plaintiff.
76. Seen in the above perspective, there is no scope of entertaining
the argument of the defendant/appellant to the effect that the
plaintiff was not entitled to institute the suit against the defendant,
that too, on the ground of a trespasser.
77. However, in the case of Rajiv Ghosh (supra), although the
Hon‟ble Supreme Court held that admission of tenancy status and
termination of tenancy due to statutory limitation under Section
2(g) of the 1997 Act entitled the plaintiff to have a judgment on
admission, the said decision was rendered in the specific context
of Order XII Rule 6 of the Code of Civil Procedure, which does
not govern the present impugned judgment. Hence, it is
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somewhat doubtful as to whether the said decision can be
regarded as a binding precedent insofar as the issue at hand is
concerned. However, fact remains that the proposition laid down
therein to the effect that an admission of tenancy status and
termination due to statutory limitation under Section 2(g) of the
1997 Act entitles the plaintiff to eviction is apt in the
circumstances.
78. Be that as it may, in view of our above observations, the appeal
fails.
79. Accordingly, FAT 561 of 2025 is dismissed on context, thereby
affirming the impugned judgment and decree dated September
25, 2025 passed by the learned Judge, Fourth Bench, City Civil
Court at Calcutta in Title Suit No. 2145 of 2023.
80. CAN 1 of 2026 is disposed of accordingly in the light of the
above observations.
81. There will be no order as to costs.
82. The defendant/appellant is granted ninety days‟ time for
vacating the suit property.
83. In default, the execution case levied by the
plaintiff/respondent shall revive and the respondent shall be
entitled to obtain eviction of the appellant in due process of law.
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84. A formal decree be drawn up accordingly.
I agree.
(Sabyasachi Bhattacharyya, J.)
(Supratim Bhattacharya, J.)