LAWS(CAL)-2012-2-39

PRABIR KUMAR JALAN Vs. LAXMI NARAYAN JALAN

Decided On February 06, 2012
PRABIR KUMAR JALAN Appellant
V/S
LAXMI NARAYAN JALAN Respondents

JUDGEMENT

(1.) THIS is a Chapter XIIIA application made by the plaintiff. He seeks a final judgment and decree in his suit for possession of the third floor of premises No. 68/A/1B Nimtolla Ghat Street, Kolkata �700006 (hereinafter referred to as "the said premises "). He also claims an enquiry into mesne profits and a decree therefor.

(2.) THE cause of action arises in this way. The original owner of the said premises was a Tara Devi Jalan. On 26th December, 1967 she granted a lease of the said premises for 21 years to Uma Shankar Jalan commencing on 26th December, 1967 at the rent reserved by the deed of lease. Now, Clause 12 of this lease empowered the lessee to give two months ' notice to the lessor for vacating the said premises. Whatever may have been the construction of the lease made by Tara Devi Jalan, a suit was instituted by her in this Court being Suit No. 177 of 1989 for eviction of the lessee Uma Shankar Jalan on the ground that the lease had expired by efflux of time. In that suit a Chapter XIIIA application was taken out by the plaintiff. This Court by a decree dated 6th July, 1989, in that application, ordered the eviction of Uma Shankar Jalan. Uma Shankar preferred an appeal from this judgment and decree before the Division Bench of this Court, which by its judgment and order dated 10th November, 1994 set aside the decree based on the Chapter XIIIA application. On 7th December, 1994 Uma Shankar filed his written statement in the suit. On 25th December, 1999 Uma Shankar died. The present defendants are the heirs of Uma Shankar, the first and second defendants being his sons and the third and fourth defendants being his daughters. Now, Tara Devi Jalan did not feel interested to retain the said premises anymore. On 13th February, 2001 she made a gift of the said premises to the present plaintiff. The records show that the above suit (Suit No. 177 of 1989) is still pending in this Court. Before proceeding further with the narration of events it is to be noted that the defence which Uma Shankar Jalan had taken in the suit was that, since by Clause 12 of the lease, the lessee had the option to determine the lease earlier, he was protected by the West Bengal Premises Tenancy Act, 1956.

(3.) ACCORDING to this sub-section upon the death of the tenant, inter alia, his sons and daughters who were ordinarily living with him up to the date of his death as the members of his family and were dependant on him and who did not own or occupy any residential premises would also be considered to be tenants for a period of five years from the date of death or from the date of coming into force of this Act whichever was later. Therefore, upon the death of the original tenant Uma Shankar Jalan on 25th December, 1999, the tenancy came to an end on the expiry of five years from the date of coming into force of the new Act. Hence, the defendants, assuming them to be the heirs of Uma Shankar Jalan and dependent on him and having no other place of residence have lost their right to reside in the said premises. So, they should be evicted. Defendants: The suit of 1989 is still pending. Both the plaintiff and the defendant of that suit are dead. The present plaintiff made no effort to cause substitution of the parties. Therefore, the suit has abated. For the above reason, the plaintiffs were precluded from instituting the present suit. Uma Shankar Jalan died on 25th December, 1999 before coming into force of the new Act on 10th July, 2001. Since Uma Shankar was a monthly tenant and died during the operation of the old Act, valuable rights had accrued to the present defendants, such right being the right to succeed to the tenancy of Uma Shankar Jalan. Such right was protected by Section 8 of the Bengal General Clauses Act 1897. No notice determining the tenancy was given by the plaintiff. Discussion: