DULAL CHOUDHARY Vs. HIRAK ROY CHOWDHURY

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) Sri Rai Mohan Chaudhury and his wife Smt. Jyotsna Chowdhury filed a suit against Smt. Sulata Ghosh for her eviction from premises bearing No. 20-B, Ballygunje, Station Road, Calcutta, on the grounds of default, damage to the premises, their bonafide need and sub-letting to Sri Bireswar Roy Chowdhury without their knowledge and consent. The defendant contested the suit by alleging that there did not exist landlord-tenant relationship between the parties. She also denied the allegations of default, damage to the property and sub-letting. She pleaded that the premises were let out to her husband late Sri Jitendra Nath Ghosh by the erstwhile owner, Sri Janak Nath Sen and after disposal of the suit premises by Sri Sen, her husband became tenant under Sri Dulal Chowdhury and Sri Sunil Chowdhury. She also claimed her brother, Sri Bireswar Roy Chowdhury along with members of his family were residing in suit premises since 1947 and that there was no question of sub-letting.

(3.) During the pendency of the suit, one of the plaintiffs, namely, Sri Rai Mohan Chowdhury died and his legal representatives were brought on record. Defendant Smt. Sulata Ghosh also died on 17.8.1986. Thereupon, an application was made by the plaintiffs on 17.11.1986 for bringing on record Sri Hiarak Roy Chowdhury (respondent No. 1 herein) as legal representative of the deceased defendant. Later on, the plaintiffs filed an application for amendment of the substitution petition and bringing on record Sri Madan Ghosh and Sri Bankim Ghosh sons of late Subodh Chandra Ghosh, as legal representatives of defendant-Smt. Sulata Ghosh, by claiming that they were the heirs of the original tenant, namely, Sri Jitendra Nath Ghosh. They also applied for condonation of delay in filing the application. The trial Court allowed the application of the plaintiffs and ordered substitution of Sri Bankim Ghosh as the defendant being the legal representative of the husband of Sulata Ghosh. Soon thereafter, respondent No. 1 filed an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for being impleaded as a defendant by claiming that he was the only surviving heir of the deceased defendant and was living with her. His application was allowed and he was impleaded as defendant No. 2. Thereafter, he filed written statement to contest the suit. He denied the plaintiffs assertion regarding subletting and claimed that his family was living in the tenanted premises since long being direct relations of the deceased tenant and they were having one and joint mess. Sri Bankim Ghosh filed an affidavit dated 8.9.1988, stating therein that there never existed any relationship between him and the deceased; that he never stayed in the tenanted premises; that the deceased had been living with her brother and brother s son since long and that he does not have any claim over the tenanted premises.