SOVA RANI SEAL Vs. DILIP KUMAR SAMANTA

JUDGEMENT

(1.) The judgment and decree dated 17th May, 2001 passed in Title Appeal No.138 of 1998 by the learned Additional District Judge, 2nd Court at Howrah affirming the judgment and decree dated 29th June, 1998 passed in Title Suit No.85 of 1993 by the learned Civil Judge (Junior Division), 1st Court at Howrah is assailed in the instant appeal by the defendants of the original suit.

(2.) The respondents as plaintiffs instituted Title Suit No.85 of 1993 praying for eviction of the defendant/appellant and mesne profits alleging, inter alia, that the appellant was a tenant governed under the Transfer of Property Act in respect of a suit shop room situated at Shostitala, Sanpuipara within P.S Bali in the district of Howrah under one Smt. Sitala Patra and others. The plaintiffs/respondents became the owners of the suit property by a deed of sale dated 13th August, 1986 and became the owners of the property in suit including the suit shop room. The defendant was inducted as a monthly tenant in respect of the suit shop room at a rental of Rs.80/- according to the Bengali calendar month. It is further stated by the plaintiffs that the defendants were habitual defaulters in payment of rent. The plaintiffs reasonably require the suit shop room for their business and also to make pucca construction thereon which will augment the plaintiff's income. Therefore, the plaintiffs sent a notice of ejectment dated 17th May, 1993 under registered post with acknowledgement due. The defendant received the said notice on 24th May, 1993 by putting her signature on the postal AD card. By the said notice the tenancy of the defendant was terminated on the expiry of the last day of the month of Jaistha 1400 BS and she was requested to deliver vacant and peaceful possession of the suit property with the expiry of the last day of Jaista 1400 BS. In spite of receipt of the said notice, the defendant failed and neglected to vacate the suit shop room. Therefore, the plaintiffs filed the said suit.

(3.) The defendants contested the said suit by filing written statement wherein she denied entire allegation made out against her by the plaintiffs. Specific case of the defendant is that she and her son Pradip Kr. Sil were jointly inducted by one Usha Rani Samanta in respect of the suit shop room. Usha Rani Samanta was the landlady of the said joint tenants, viz, the defendant and her son. She used to receive rent from both the defendant and her son. However the suit was filed without impleading Pradip Kumar Sil, his tenancy was also not determined by an ejectment notice. Therefore, the suit is bad for defect of parties. It is further pleaded by the defendants/appellants that initially she and her son was inducted in respect of the suit shop room at a monthly rental of Rs.40/-. Subsequently, it was gradually enhanced to Rs.80/-, Usha Rani Samanta used to collect rent through her agent. Sometimes in the year 1989 Usha Rani started to issue rent receipt only in the name of the defendant. The defendants raised objection at that time Usha Rani assured that the defendant and her son Pradip Kumar Sil were joint tenants and their status as joint tenants would not be jeopardized despite granting rent receipt in the name of Sobha Rani alone. The defendant denied existence of any relationship of landlord and tenant between the plaintiffs and her. The defendant also challenged the legality, validity and sufficiency of the ejectment notice. It was contended that the notice was not served to her in accordance with the provision of Section 106 of the Transfer of Property Act. It is contended that no notice was ever tendered to the defendant at her residence and accordingly the notice is illegal and invalid.