KRISHNA DHONE PRAMANICK Vs. RAM PALAT SAHOO

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree dated 10th May, 1978 passed by Sri Sukumar Guha, Judge, 10th Bench, City Civil Court, Calcutta. The plaintiff is the appellant in this Court.

(2.) THE plaintiff brought a suit for recovery of khas possession. The plaintiff's case may, briefly, be stated as follows : The plaintiff and his three brothers became owners of a premises No. 88a, Bechu Chatterjee street, Calcutta-6, by purchase Biswanath Sahoo, since deceased, father of the defendant Ram Palat Sahoo, was a tenant under them in respect of one room on the ground floor of this premises at a rental of Rs. 22/- payable according to English Calendar. By the decree dated 12. 12. 72 passed in Partition and Administration suit No. 306 of 1971 in the Hon'ble High Court at Calcutta, between the aforesaid owners, demarcated southern portion of premises No. 88a, Bechu Chatterjee Street was allotted to the share of the plaintiff. The room in occupation of the defendant's, father fell to the share of the plaintiff. After demise of Biswanath Sahoo, the defendant is in occupation of the room and after passing of the said decree, the defendant became a tenant under the plaintiff in respect of the room in suit on the previous terms and conditions. It is the case of the plaintiff that the plaintiff reasonably requires the room in a suit for his own use and occupation and the defendant is a defaulter in payment of rent since November, 1968,. The tenancy was determined by a combined notice to quit and the notice of the suit dated 21/6/1974. Inspite of service of the notice, the defendant has not vacated the suit room. Hence, the suit.

(3.) THE defendant contested the suit stating that Biswanath who was a tenant under the plaintiff and his brothers in respect of the room in suit died on 26/1/1964 leaving behind him the defendant as his son and two daughters Kamala Devi and Ramrati Devi as his heirs and legal representatives to inherit the tenancy in the suit premises and as such, the suit is bad for non-joinder and/or mis-joinder of parties. It was also contended that there was no relationship of landlord and tenant between the plaintiff and the defendant and that the plaintiff does not reasonably require the disputed room for his own use and occupation. An objection was also taken to the effect that the notice to quit is not legal, valid and sufficient and it was not duly served upon the defendant and that the defendant is not a defaulter as alleged. The learned Judge found in favour of the plaintiff that the plaintiff is the absolute owner of the suit premises. But the learned judge found that the defendant is not the sole tenants under the plaintiff that he along with his two sisters became tenants under the plaintiff on the death of the defendant's father and as such, the suit is bad for non-joinder of the two sisters Kamala Devi and Ramrati Devi as tenants. In that view of his finding, the learned Judge dismissed the suit. Being aggrieved, the plaintiff has come in appeal.