ANIMA GUPTA Vs. ASHIS GUPTA

JUDGEMENT

(1.) THIS instant Second Appeal is at the instance of the defendant/appellant and this is directed against the judgment and order passed on 18.2.1994 by the learned Additional District Judge, 5th Court, Alipore, 24-Parganas (South) in Title Appeal No. 217 of 1991 setting aside the Judgment and Order passed by the learned Munsif, 5th Court, Alipore in Title Suit No. 608 of 1985 on 26.2.1991.

(2.) THE case of the defendant-appellant in brief is that the plaintiff- respondent instituted a suit being Title Suit No. 608 of 1985 in the Court of the learned Munsif, 5th Court, Alipore for eviction of the defendant-appellant from the suit premises. In the said suit the plaintiff-respondent claimed that his mother Smt. Nilima Gupta was the owner of the suit premises and the said premises was let out to the defendant-appellant by her at a monthly rental of Rs. 80/- payable according to English calendar month and that the said tenancy was given for a specific temporary period from November, 1974 to December, 1975. It was the further case of the plaintiff-respondent that on the death of the owner Smt. Nilima Gupta, the suit property devolved on the plaintiff being her son. It was again the case of the plaintiff-respondent that he was living in a rented house with great difficulty and had no other property excepting the suit premises for own use and occupation. Besides, according to the plaintiff-respondent, the defendant-appellant caused damage to the suit property. Hence the plaintiff-respondent was compelled to file the instant suit for eviction of the defendant-appellant from the suit premises after due service of notice to quit as required under Section 13(6) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act.

(3.) AFTER a full-dressed trial, learned trial Court held that the notice of ejectment was duly served on the defendant-appellant and that the same was legal, valid and sufficient and hence the suit was maintainable. But the learned trial Court below held that the suit was bad for non-joinder of parties and that the plaintiff-respondent was not the absolute owner of the writ property but only a co-owner and accordingly the plaintiff-respondent was to entitled to get a decree for eviction on ground of reasonable requirement being not the full owner of the suit premises. It was also held that the defendant-appellant was not guilty of causing any nuisance nor she was guilty of violation of the provisions contained in Clause (m), (o), (o) of section 108 of Transfer of Property Act. It was accordingly held that the plaintiff- respondent was not entitled to get decree for eviction as prayed for. Being aggrieved by such findings, the plaintiff-respondent filed First Appeal, being Title Appeal No. 217 of 1991, which was disposed of by learned Additional District Judge, 5th Court, Alipore on 18.2.1994. It appears that for the purpose of adjudication of the disputes, learned First Appellate Court framed the following points for decisions :-