ARUN KUMAR GHOSE Vs. KANAI KUMAR ROY

JUDGEMENT

(1.) THIS is a petition under article 227 of the Constitution arising out of an application by a landlord for eviction of a thika tenant under section 5 of the Calcutta Thika Tenancy Act, 1949. The property in suit consists of the back portion of land at No. 3, Mysore Road, Tollygunge. The property was allotted to one Amulya Chandra Ghose subject to the life interest of his mother sm. Probodh Kumari by the compromise decree in Title Suit No. 4 of 1939 in the Second Court of the Subordinate Judge, Alipore dated 20th March, 1939.

(2.) IN June, 1950 opposite party No. 1 Kanai was the thika tenant of the property, the tenancy being from month to month according to the Bengali calendar. On the 14th June, 1950 Probodh Kumari served a notice on Kanai alleging inter alia that she required the land for building and re-building and requiring Kanai to quit and vacate the land on the expiry of Bhadra, 1357 B. S. On the 14th October, 1950 Probodh Kumari died. Amulya, her son, had predeceased her and consequently the suit land devolved upon the present petitioner Arun Kumar Ghose, who was the son and heir of Amulya Chandra Ghose. On the 22nd December, 1951 Arun Kumar instituted Title Suit No. 875 of 1951 in the First Court of the Munsif, Alipore against Kanai on the ground inter alia that he required the land or building and re-building. Sometime in 1954 the suit was transferred to the Third Court of the Munsif, Alipore and was marked as Title Suit No. 410 of 1954. By a kobala dated 1st August, 1954 Kanai transferred to Sushila, opposite party No. 2, his interest in the holding as a thika tenant together with the structures thereon. On the 11th January, 1955, Sushila was added as a party to the suit. On the 27th January, 1955 the learned Munsif passed an order that the plaint be returned to Arun Kumar's pleader for presentation to the Thika Controller. Pursuant to this order the plaint was returned to the pleader and was presented by him to the Thika Controller as an application under section 5 of the Calcutta Thika Tenancy Act against both Kanai and Sushila. On the 1st October 1956 the Thika Controller allowed the application and passed an order for ejectment in favour of the landlord, Arun Kumar against Kanai and Sushila. Sushila preferred an appeal before the learned Subordinate Judge. By his order dated the 28th May, 1957 the Subordinate Judge allowed the appeal and set aside the order passed by the Thika Controller holding that (a) the Controller had no right to entertain the application under section 5 because the order dated the 17th January, 1955 was without jurisdiction and (b) that Arun Kumar could not claim ejectment on the basis of the notice served by Probodh Kumari and that in order to succeed Arun Kumar had to serve a fresh notice under section 4 of the Calcutta Thika Tenancy Act on the tenant. Mr. Sen on behalf of opposite party No. 2 strongly pressed both these points before us as also several other points.

(3.) BOTH the tribunals below have concurrently found that Arun Kumar requires the land for building and rebuilding. Mr. Sen contended that this finding is erroneous and should be set aside. We are satisfied that the finding is not vitiated by any error of law and we see no reason to interfere with it.