SUNIL KUMAR BOSE Vs. JAGABANDHU DHANG

JUDGEMENT

(1.) This second appeal has been preferred challenging the judgment dated 28-5-1991 and decree dated 4-6-1991 passed by the learned Asstt. District Judge, Howrah in Title Appeal No. 226/90 reversing the judgment dated 31-8-1990 and decree dated 7-9-1990 passed by the learned Munsif, 5th Court at Howrah in Title Suit No. 15 of 1987.

(2.) The Title Suit No. 15 of 1987 relates to eviction of the defendant from the suit premises along with prayer for khas possession and mesne profits.

(3.) The case as has been made out by the plaintiff in the plaint is inter alia, as follows : The plaintiff is the absolute owner and landlord of the suit property and he got it by virtue of a deed of partition dated 16-5-1984. The said deed of partition was effected by and between the plaintiff, one Sri Dasharathi Dhang and Bholanath Dhang, amongst these three co-sharers. The defendant was a premises tenant under the plaintiff at a monthly rental of Rs. 33/- only payable according to English Calendar month. The defendant is a habitual defaulter and he defaulted in payment of rent from the month of October 1983. The plaintiff requires the suit premises for his own use and occupation since he is suffering from serious dearth of accommodation. The plaintiff and his wife are living in a room situated in the second floor of the holding No. 45/5 Sri Ram Dhang Road, Salkia, Howrah and the said room belongs to the son of the plaintiff that is Rabi Sankar Dhang. The ownership of first floor and second floor of the said building had already been transferred by the plaintiff in favour of his four sons by a registered deed of settlement dated 14-7-1966 and said four sons of the plaintiff and owing and possession exclusively the first floor and second floor of the said building in respect of manner as per the terms of the aforesaid deed of settlement. By virtue of the deed of settlement the plaintiff had only retained the limited ownership that is the life interest only and possession of the ground floor of holding No. 45/5 Sri Ram Dhang Road. Due to serious paucity of accommodation, particularly, of a bed room in the ground floor the plaintiff and his wife have become compelled to live in the said second floor room which is now owned by the 3rd son of the plaintiff. The plaintiff is acute patient of serious heart trouble and hypertension and had already suffered twice hear attack and this ailment and Cardiac trouble is a continuous one and during the last heart attack which took place a few weeks earlier to the filing of this suit was of so serious nature that the plaintiff became absolutely unconsciousness and was in almost dying condition and as such he had to be admitted in Medical College and Hospital for the heart treatment and his treatment is still going on and the plaintiff because of his present ill-health is unable to use the staircase and the plaintiff is feeling great trouble and inconvenience and until and unless the defendant is evicted from the suit premises the plaintiff will not be able to meet his said bona fide and genuine need of bed room in the ground floor inasmuch as the suit premises and his bath room and privy in the ground floor are required to be used by the plaintiff. The plaintiff has also pleaded that he has no other suitable accommodation elsewhere to meet his aforesaid requirement. The plaintiff further pleaded that the defendant is also liable to be evicted from the suit premises since the defendant is guilty of committing acts of waste and damage to the suit property in contravention of Cls. (m), (o) and (p) of S. 108 of the Transfer of Property Act, by making illegal partition wall of the suit premises effecting material damages. The defendant is guilty of nuisance and annoyance. The aforesaid are the grounds which the plaintiff took in the plaint for eviction of the defendant. The plaintiff thereafter pleaded in paragraph 7 of the plaint that he has served notice to quit dated 19-11-1986 to the defendant through his Advocate thereby terminating the tenancy. The said notice was sent to the defendant under Registered Post with A/D and as well as Under Certificate of Posting and the defendant duly received the said notice putting signature on the acknowledgment card. According to the plaintiff, cause of action arose on and from 1-1-1987 and the plaintiff as such prayed for the decree for eviction and khas possession along with mesne profits cost of the suit etc. The schedule shows that the suit premises consist of a back bed room together with common user of bath room, privy etc. together with all appurtenances, privileges attached thereto situated at the ground floor comprised within holding No 45/5 Sriram Dhang Road, Salkia, Howrah.