Sri Krushan Chandra Nayak vs Gobinda Charan Pyne on 23 March, 2026

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    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

    SPONSORED

    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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    2026:CHC-AS:467-DB

    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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    2026:CHC-AS:467-DB

    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-à-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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    2026:CHC-AS:467-DB

    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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    2026:CHC-AS:467-DB

    the rights of the plaintiff vis-à-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-à-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-à-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-à-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
    20

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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.)



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