Co-Tenancy Cannot Be Wished Away by Suppression of Facts: Calcutta High Court Rejects Exclusive Tenancy Claim, Upholds Joint Tenancy Among Heirs

“Where joint tenancy is established, absence of surrender extinguishes no right. The presumption under Section 109 of the Evidence Act stands undisturbed by false narratives,” In a significant ruling, a Division Bench of Justice Sabyasachi Bhattacharyya and Justice Uday Kumar of the Calcutta High Court, in the case of Mariam Bibi and others vs Asgari Khatoon and others, dismissed the plaintiffs’ appeal seeking exclusive tenancy rights over a property in Kolkata. The Court found that the plaintiffs not only failed to establish their exclusive tenancy but were guilty of suppressing material facts about the joint nature of the tenancy, as evidenced by rent receipts, affidavits, and legal documents spanning decades.

The ruling is a powerful reaffirmation of the principle that tenants cannot manipulate legal narratives to eliminate co-tenants and that statutory presumptions under the Indian Evidence Act remain paramount in tenancy disputes.

“Suppression of Co-Tenancy is Fatal to Claims of Exclusivity” — Calcutta High Court Strikes Down Fabricated Tenancy Claim

The dispute centered on the tenancy rights over a premises historically occupied by two original tenants, Kopline and Maqbool. The plaintiffs, legal heirs of Noor Mohammed (son of Kopline), claimed exclusive tenancy rights after Noor Mohammed’s death. However, the respondents, heirs of another son Siddique and others, asserted their continuing co-tenancy rights inherited from Kopline, along with the heirs of Maqbool.

Rejecting the plaintiffs' claims, the Court observed:
“The plaintiffs altogether suppressed the devolution of such tenancy prior to Noor Mohammed and started with the story that Noor Mohammed was the exclusive tenant, thus, rendering the plaintiffs/appellants guilty of gross suppression of material facts, for which adverse inference ought to be drawn against them.”

“Admitted Documents Defeat Fabricated Claims”: Rent Receipts and Affidavits Confirm Joint Tenancy

The High Court pointedly noted that rent receipts produced by the plaintiffs themselves recorded joint tenancy in the names of Kopline and Maqbool, and later Noor Mohammed and Maqbool’s widow, Raitan. Three isolated rent receipts in Noor Mohammed’s name could not override the historical and documented joint tenancy.

Citing Section 109 of the Indian Evidence Act, the Court ruled:
“In the absence of any pleading or proof of cessation or surrender of their joint tenancy by Maqbool or his heir Raitan, the plaint case of sole tenancy of Noor Mohammed and thereafter his heirs, the plaintiffs, was never established.”

The judgment went on to underscore the significance of affidavits executed before judicial officers by Noor Mohammed, where he unequivocally admitted the tenancy was jointly held with other heirs of Kopline, including his brother Siddique, and the heirs of Maqbool. The Court noted:
“The authenticity of the said affidavits stands vindicated and unchallenged by the plaintiffs/appellants.”

“Silence Does Not Terminate Rights”: Wakf Board Order Did Not Extinguish Co-Tenancy

The appellants argued that since the defendants did not initiate a civil suit after the Wakf Commissioner’s order in 1990, their tenancy rights were extinguished. The Court firmly rejected this, observing:
“It is a settled proposition of law that the law of limitation does not take away the substantive rights of a person but merely precludes the filing of a legal action. There is no bar to a person claiming such substantive rights in defence.”

It held that no statutory bar prevented the defendants from asserting co-tenancy in defence, even after the Wakf Board proceedings.

“Possession by One Co-Tenant Represents All”: No Duty on Co-Tenant to File Eviction Suit

Refuting another contention by the appellants, the Court clarified that even if the defendant Siddique was allegedly dispossessed, he need not have filed an eviction suit. Justice Bhattacharyya emphasized:
“The physical possession of one of the co-tenants of a property is deemed to be legal possession on behalf of all the other co-tenants.”

This doctrine eliminated the necessity of an eviction suit among co-tenants where joint tenancy persisted.

“Not a Hotel, Not Excluded from Protection”: Court Rejects Misclassification of Premises

Another unsuccessful argument of the appellants was that the premises, being an ‘eating house,’ fell under the category of ‘hotel’ and therefore was excluded from protection under Rent Control statutes. The Court dismissed this as untenable, stating:
“A hotel is obviously a boarding or lodging house whereas the suit property is admittedly used as an eating house only, meaning thereby that it is a mere restaurant where people come and go for their meals.”

Moreover, the Court pointed out that irrespective of specific rent control statutes, the tenancy rights are governed under the Transfer of Property Act.

No Error in Trial Court, Appeal Dismissed

Concluding its detailed judgment, the Division Bench upheld the findings of the trial court, remarking:
“On the test of preponderance of probability, the learned Trial Judge has rightly arrived at conclusions which are in consonance with the law governing the field as well as the evidence on record.”

The appeal was dismissed, the claim of exclusive tenancy was rejected, and the judgment of the trial court was affirmed, thereby preserving the joint tenancy rights of all heirs.

Date of Decision: 9th July 2025