MILAN KANTI DUTTA Vs. AMINUL IQBAL

JUDGEMENT

(1.) THIS second appeal is directed against judgment and decree dated 30.09.1994 passed by learned Assistant District Judge, Additional Court, Hooghly in Title Appeal No.66 of 1990 affirming the judgment and decree of eviction dated 28.11.89 passed by learned Munsif , 2nd Court, Hooghly in Title Suit No.183 of 1986.

(2.) IT is the case of the plaintiffs that they being the owner of entire property (ASchedule) let out the suit property i.e. (B-Schedule) to Sri Jogendranath Dutta, the predecessor in interest of the defendants for running a shop by his son Milan Kanti Dutta (Defendant No.4) at a rental of Rs.30/- per month payable according to Bengali calendar month. IT was later on enhanced to Rs.40/- per month. Defendant No.4 Milan Kanti Dutta solely runs a grocery shop in the suit shop room. The plaintiffs earlier filed an ejectment suit against the present defendant No.4, Milan Kanti Dutta being Title Suit No.17 of 1986. In that case defendant No.4 rook the plea that his father Jogendranath Dutta since deceased was original tenant and on his demise all his legal heirs were necessary parties for said suit of ejectment. Learned Trial Court dismissed said suit observing that other legal heirs of Jogendranath Dutta, since deceased, were necessary parties. The defendant/tenants were habitual defaulter and did not pay rent since Magh, 1392 B.S. and defendant No.4 being in occupation of the suit shop room caused damage to the property and plaintiffs reasonably required the suit shop room for running a business. The plaintiffs sent notice of ejectment under Section 106 of Transfer of Property Act upon all the heirs of Jogendranath Dutta, since deceased, under registered post with A/D terminating tenancy with a direction to quit and vacate the suit premises on the expiry of the month of Ashin, 1393 B.S. Some of the defendants received said notice and some of the defendants refused to accept the notice. The present defendant No.4 also did not accept said notice. Plaintiffs also claimed arrears of rent since Magh, 1392 B.S. to Kartick, 1393 B.S. and also claimed mesne profit at the rate of Rs.2 per day till recovery of possession.

(3.) THOSE grounds are enumerated below. (IX) For that the learned Additional Assistant District Judge failed to appreciate that the plaintiff stated in his plaint that the defendant No.4 is the only tenant and the rest are not the tenants and if that be so, what compelled the plaintiff to serve the notice to the other defendants which had falsified the case of the plaintiff that the notice was duly tendered to the defendant No.4 and he did not claim the service of notice. (X) For that the Courts below should have held that the tenancy of defendant No.4 still exists and was not terminated with the expiry of month of Aswin, 1393 B.S. in view of the fact that the plaintiff had claimed rent for the month of Kartick, 1393 B.S. in their plaint.