PARITOSH GHOSH Vs. ASHIM KUMAR GUPTA & ORS.

JUDGEMENT

(1.) This second appeal is directed against the judgment and order dated 9th July, 1991 passed by the Ld. 13th Additional District Judge, Alipur in Title Appeal No. 329/89 of this court. The said Title Appeal No. 329/89 was preferred by the tenant -defendant Sri Paritosh Ghosh against the judgment and order dated 31st May, 1989 passed by the Ld. Munsif. 2nd Court. Alipur in Title Suit No. 201/83 of that court. The relevant facts are as follows: The plaintiff Ashim Kr. Gupta and others filed the said title suit against the said defendant praying for a decree of eviction of the defendant -tenant from the disputed premises No. 25. Ekdalia Road. Calcutta - 700019 on the following grounds. The defendant who had been inducted as a monthly tenant in respect of the said premises at a rental of Rs. 550/ - per month by Sm. Pumima Gupta, since deceased, the erstwhile owner of the house, violated the terms of the agreement by sub -letting his tenanted premises to the defendant No. 2 without obtaining any written consent from the landlord and he has been realising Rs. 3,500/ - every month from that sub -tenant by way of rent. The defendant No. 1 committed certain further unlawful acts which have rendered him liable for ejectment from the suit premises in view of the terms of the agreement. Thus he caused certain damages to the suit building in violation of the provisions of clauses (m). (o) and (p) of Sec. 108 of the T. P. Act. That apart, he also defaulted in payment of rent to the plaintiffs. Moreover, the plaintiffs required the suit premises for their own use and occupation as they have got no other alternative suitable accommodation. Due to non -availability of accommodation in the suit house one of the plaintiffs cannot be given in marriage. Also, the accommodation in their existing residence cannot be made available to the married sister of the plaintiffs, when she wants to come to her father's house along with her husband and children. The plaintiff sent notice to quit upon the defendants dated 25th January, 1983 asking him to vacate the premises and deliver up the vacant possession of the same in favour of the plaintiffs by the last day of February, 1983, but even after receipt of that notice he has not vacated the suit premises. Hence the erstwhile landlady Mrs. Purnima Gupta filed the suit against the defendants praying for a decree of their eviction form the suit premises. Subsequently, during pendency of the suit, the said plaintiff. Mrs. Purnima Gupta, died and on her death the present plaintiff being her legal heirs were joined as plaintiffs in place of the deceased plaintiff. The defendant No. 1 appeared and filed a written statement in order to contest the suit. His case was one of denial of the allegations of the plaint. It is his case that he never caused any damage to the suit building, never constructed any structure, never altered the suit premises in any way and has never inducted any sub -tenant as alleged. He has also disputed the ownership of the plaintiffs in respect of the suit premises. Further, he does not admit due service of the notice to quit upon him. According to him the suit being on false grounds is liable to be dismissed with cost.

(2.) On the basis of the pleadings of the parties the trial court framed the following issues for consideration.

(3.) The Ld. Munsif found that the notice to quit was legal, valid and sufficient and had been duly served on the defendant in due time and thus rejected the plea raised by the defendant in this regard. He also found the suit legally maintainable. As regards the issue No. 3, that is, the question whether the defendant No. 1 was a defaulter, his finding was that in view of the provisions of Sec. 17 of the W.B.P.T. Act, the defendant having deposited in full the rents, both arrears and current, was entitled to get the protection against eviction under Sec. 17(4) of the said Act and accordingly the Ld. Munsif answered the issue in favour of the defendant. On the question whether the plaintiffs had established their alleged ownership in respect of the suit premises and whether they reasonably required the same, both the issue Nos. 6 and 7 have been decided by the trial court against the plaintiffs. Since it was in evidence that the suit premises were given to the plaintiffs by virtue of a deed of gift by the erstwhile owner Mrs. Purnima Gupta (Exbt. 14J on 23rd June, 1986, they were no doubt found to be the owners of the suit property, but what stood in their way in the matter of claiming an eviction decree on the ground of reasonable requirement was that under the provisions of Sec. 13(3)(A) of the W.B.P.T. Act, landlord having acquired interest in the premises by virtue of transfer cannot file a suit for recovery of possession on the grounds mentioned in clause (I) or clause (II) of Sec. 13(A) of the Act before the expiration of a period of 3 years from the date of his acquisition of such interest. According to Ld. Munsif, in view of these mandatory provisions, since the acquisition of title by these plaintiffs by virtue of a deed of gift from the erstwhile owner of the house, Purnima Gupta, took place within a period of three years from the date of possession of the suit property and a period of three years in full had not expired from such date of acquisition in interest, they were not entitled to claim a decree for eviction against the defendant -tenant on the ground of their reasonable requirement. Ld. Munsif did not accede to the contention of the Ld. Counsel for the plaintiffs that in view of a decision reported in, 1989 C.L.N. 256 this barrier could be overcome. In this view of the matter, the Issue No. 7 was decided against the plaintiffs and they were not found entitled to claim a decree for eviction in the suit premises on the ground of reasonable requirement. However, the Ld. Munsif found the other two vital issues, namely, issue Nos. 4 and 5 in favour of the plaintiffs. According to him, the materials on record fully established the case of the plaintiffs that the defendant No. 1 had sublet the suit premises in favour of defendant No. 2 without the consent of the landlord and on that score the plaintiffs became entitled to get a decree for eviction against the defendants. Similarly so far as the issue No. 5 is concerned, the Ld. Munsif came to hold that the evidence on record had clearly proved that the defendants had violated the provisions of Clauses (m). (o) and (p) of Sec. 108 of the Transfer of Property Act by contravening the terms of the agreement of tenancy and failed to keep the tenanted premises in the condition in which it was at the time when the defendant took the lease. Thus, according to Ld. Munsif, on that score again the defendant became liable to be evicted from the suit premises. The issue Nos. 4 and 5 being thus answered against the defendants and in favour of the plaintiffs, the latter was found entitled to get a decree for ejectment against the defendant and accordingly the Ld. Munsif passed the impugned judgment under which the plaintiff got a decree of khas possession in respect of the suit premises on eviction of the defendant therefrom and the defendants were directed to vacate the same and deliver khas possession thereof to the plaintiffs within two months from the date of that order.