SANAKA GHOSH Vs. ASTAM CHANDRA GHOSH

JUDGEMENT

(1.) THE defendant tenant is the appellant against this judgment of reversal. THE respondent as the plaintiff filed a suit being Title Suit No.153 of 1989 against the defendant in respect of the suit shop room on the grounds of default in payment of rent at the rate of Rs.100/- per month from Kartick, 1386 B. S., causing damages to the suit property as well as reasonable requirement of the same. It is further case that plaintiff sent a lawyer's notice to quit dated 31.07.1989 to the defendant tenant under registered post with A/D and that defendant received said notice by putting his L. T. I. thereupon but in spite of receipt of said notice he did not vacate the suit premises by the end of Bhadra, 1396 B. S. and hence was the suit for eviction.

(2.) THE defendant tenant contested said suit by filing a written statement alleging inter alia that plaintiff was not the sole landlord and that rate of rent was Rs.25/- per month and that plaintiff earlier brought a suit being Title Suit No.136 of 1980 praying for eviction of this defendant claiming him to be a licensee in respect of the suit property and that the same was dismissed not only in the Trial Court but also in the appellate Court in Title Appeal No.189 of 1983. It is further case that notice was illegal, invalid and insufficient and that the suit was liable to be dismissed. Both the Courts came to the concurrent findings of fact that the defendant was a tenant at a rental of Rs.100/- per month under the plaintiff in respect of the suit premises and that he defaulted in payment of rent since Kartick, 1386 B. S. and that a notice to quit dated 31.07.1989 was duly sent to defendant tenant under registered post with A/D asking him to vacate the suit premises by the end of Bhadra, 1396 B. S. and that the notice was legal and valid. Learned Trial Court, however, dismissed the suit on the ground that the plaintiff failed to prove that the notice to quit was duly tendered to the defendant or that he accepted the same by putting his L. T. I. thereupon. In the process learned Trial Court further observed that the postal peon (P.W.2) tried to prove said service of notice upon the defendant by setting one Amal Kumar Roy as identifier of the L. T. I. of the defendant, who was none but the brother of the postal peon and that there was no explanation as to why the brother of the postal peon should be identifier in the case. learned Trial Court further observed that son of the defendant (D.W.1) categorically deposed that he had inimical relation with both postal peon and his brother Amal Kumar Roy.

(3.) I find little merit in the aforesaid submission of learned counsel for the appellant tenant. As both the parties adduced evidence in support of their respective stand on the point of service of notice upon the defendant tenant in spite of not framing of any specific issue, then no prejudice was caused to any of the parties for not framing of that specific issue by the learned Trial Court. This is more so as learned Lower Appellate Court has framed a specific issue to that effect and analyzed the evidence on record to dispose of the same. Learned counsel for the appellant tenant next submits that learned Lower Appellate Court has come to a wrong finding on that issue by observing that the postal peon Nityananda Roy (P.W.2) proved L. T. I. of the defendant Phanindra Nath Ghsoh and that there was no proof of existence of any inimical relation between the defendant in the one hand and the postal peon and Amal Kumar Roy, the identifier of the L. T. I. of the defendant in the other hand and that there was no specific denial in the written statement about non-receipt of the notice by putting L.T.I. or having any inimical relation with the postal peon.