PARIMAL GHOSH Vs. DEBABRATA GHOSH

JUDGEMENT

(1.) - The instant appeal from the appellate decree is directed against the judgment dated 24.8.1999 by Additional District Judge, 7th Court, Alipore in the District of 24 Parganas (South). Briefly stated the facts an circumstances leading to the present appeal are as follows :- The plaintiff respondents brought title suit No. 113 of 1996 for eviction of the defendant appellant from the suit premises which comprised of two rooms in the front portion with adjoining baranda, kitchen and common user of bath and privy in the ground floor of premises No. 46/1 Chandra Mondal Lane, under P.S. Tollyganj, Calcutta-700026 alleging inter alia that the plaintiff respondents got the entire ground floor, the entire second floor and portion of the first floor of the aforesaid premises, on the basis of a preliminary decree for partition passed in T.S. No. 16 of 1984 by civil Judge (Senior Division), third Court at Alipore and in this way the suit premises fell in the allotment of the plaintiff respondents. It was further alleged that the defendant was a habitual defaulter and defaulted in payment of rent from January 1996. The defendant appellant illegally and without any authority constructed wall almirah in the kitchen and also constructed rack by blocking the window in the bedroom. Such appellant also constructed sunshade by damaging the wall and also blocked and removed the ventilator and thereby violated the provisions contained in (m), (o), (p) of section 108 of Transfer of Property Act. The plaintiff respondents also reasonably required the suit premises for their own use and occupation and also for their family members as they had no other reasonably suitable accommodation. For all these reasons, the respondents through their advocate served a notice of ejectment dated 31.05.1996 to the defendant appellant asking him to quit, vacate and deliver possession of the suit premises on the expiry of the month of July, 1996. But in spite of service the defendant appellant failed to do so. In that background plaintiff respondents were constrained to file the suit. The defendant appellant contested the suit on a written statement wherein he denied all the material allegations levelled against him and specifically alleged that he had been inducted as a tenant in respect of the suit premises by Sunil Kr. Ghosh since deceased on a monthly rent of Rs. 240 and at that point of time he had four rooms, kitchen, baranda, bath and privy etc. He surrendered two rooms from his said tenanted portion and as a consequence thereof his rent was reduced to Rs. 120 from Rs. 240. It was further alleged that the wall almirah was in existence, at that time, it was further alleged that the respondents had in their possession accommodation which was in excess of their requirement and they simply instituted the suit suppressing the material facts.

(2.) The learned trial Judge in his judgment inter alia found, regarding allegation of default that the defendant appellant deposited the arrears rent from the month of January 1996 to February 1997 at the rate of Rs. 120 per month pursuant to an order passed in a proceeding under section 17(2a) and (b) of the West Bengal Premises Tenancy Act but on scrutiny of the record it was found that the defendant did not file challans in respect of deposit of rent for the months of July to October 1997 that is to say for four months and in that background learned Judge held that the defendant appellant did not comply with the provisions contained in section 17(1) of the West Bengal Premises Tenancy Act. Therefore, such defendant was not entitled to get any protection as contemplated under section 17(4) of the West Bengal Premises Tenancy Act. Regarding reasonable requirement, the learned trial Court found that the plaintiff had a reasonable requirement for the suit rooms and on the basis of the aforesaid findings it decreed the suit.

(3.) In appeal the learned Judge of the Appellate Court below found that the defendant appellant duly deposited the rent for the period from July to October 1997 and, therefore, the plaintiffs were not entitled to get the decree for eviction on the ground for default but at the same time the learned Judge of the Appellate Court below on consideration of the evidence on record and the other relevant facts and circumstances found that the plaintiff respondent could establish successfully that the accommodation available to them was not sufficient for the plaintiffs -respondents and on such a finding he confirmed the judgment and decree of eviction passed by the learned trial Court and dismissed the appeal.