ABDUL KARIM Vs. JAGAT BANDHU KUMAR

JUDGEMENT

(1.) The second appeal is directed against judgment and decree dated 28th day of February, 1995 passed by R. N. Banerjee, learned Assistant District Judge, Additional Court, Hooghly in Title Appeal No.158 of 1991 affirming the judgment and decree dated 24th April, 1991 passed by Sri Partha Lahiri, learned Munsif, 2nd Court at Hooghly in Title Suit No.4 of 1989.

(2.) Being aggrieved with said judgment of First Appellate Court the instant Second Appeal has been filed alleging inter alia that learned Court of Appeal erred in law by holding the notice of ejectment as valid as well as for not considering that the suit suffered from want of cause of action and also for not considering the entitlement of a decree of declaration of tenancy right by the present appellant/defendant by way of his counter claim as respondent/plaintiff did not file any written statement denying the same.

(3.) The fact of this case may be summarized as follows: The respondent No.1 being plaintiff filed the said Title Suit being No. 4 of 1989 claiming that respondent Nos. 2 and 3 being defendant Nos. 1 and 2 were premises tenants under him in respect of suit property at a rental of Rs.80/- per month payable according to Bengali calendar month and that they defaulted in payment of rent since Jaistha 1395 B.S. and were also guilty of subletting the suit property to the present appellant being defendant No.3 without the consent of the plaintiff and accordingly plaintiff caused service of notice of ejectment dated 15.08.1986 through his lawyer Mr. Satyendranath Das upon the defendants determining their tenancy with the expiry of the month of Bhadra 1393 B.S. and that thereafter the present appellant defendant No.3 replied to the said notice and respondent Nos. 2 and 3 (defendant Nos. 1 and 2 ) approached the plaintiff for a settlement which did not materialize and accordingly plaintiff revoked the earlier notice and caused service of notice of ejectment dated 14.11.1988 through his lawyer Keshablal Mukherjee determining the tenancy of the tenants with the expiry of the month of Poush 1395 B.S. As the defendants did not vacate the suit premises in spite of receipt of notice the suit for ejectment was filed on the ground of default and subletting together with a claim for arrears rent and for mesne profit. The defendant No.1 filed a written statement denying the material allegations of the plaint and containing inter alia that he was a tenant under the plaintiff in respect of suit premises till Baisak 1395 B.S. and that thereafter he surrendered the tenancy in favour of the plaintiff but did not contest the suit.