ASHOK KUMAR SETT Vs. GITA DAS MAHAPATRA

JUDGEMENT

(1.) This Second Appeal challenges judgement and decree passed by learned Civil Judge, Senior Division, 1st Court, Howrah in Title Appeal No. 138 of 2015 on 29th March and 5/4/2018 respectively affirming thereby the judgement and decree passed by learned Civil Judge, Junior Division, Howrah in Title Suit No. 219 of 1998.

(2.) Briefly stated, one Fatik Chandra Sett, since deceased, was a tenant under Prafulla Chandra Mukherjee, the predecessor-in-interest of the plaintiffs/respondents. The plaintiff acquired the property from her father by dint of deed of settlement dtd. 13/2/1987 and the father of the defendant became tenant in respect of the suit property under the plaintiff. Since after the death of said Fatik Chandra Sett in 1993, the defendant has been carrying on the business with the consent of all other legal heirs of Fatik Chandra Sett as a tenant at a monthly rental of Rs.70.00 per month excluding the electric charges under the plaintiff, in respect of the suit property. The defendant paid rent for the last time for the month of July, 1998 which was acknowledged vide receipt no. 737 dtd. 19/9/1998. It is contended by the plaintiff that the suit premises is required for her own use and occupation and also for the purpose of building and re-building. During pendency of the suit the plaintiff constructed building over the suit property as per plan duly sanctioned by Howrah Municipal Corporation, keeping the existing possession of the tenant. It is further contended that the defendant caused waste and damage to the suit property and acted in violation of provision under clause (m), (o) and (p) of Sec. 108 of the Transfer of Property Act. The tenancy was determined by a notice to quit dtd. 19/9/1998 which was duly served upon the defendant. Though he was called upon to quit and vacate the suit property after the expiry of the month of October, 1998, the defendant did not comply with the terms of the said notice. Hence the suit.

(3.) The defendant contested the suit by filing written statement denying all material allegations made in the plaint. It is the specific case of the defendant that the suit is bad for non-joinder of the necessary parties. The original tenant Fatik Chandra Sett was survived by his three sons namely Prosanta Sett, Feluram Sett and Ashoke Kumar Sett and four daughters namely Sunita Sett, Malina Dhang, Monju Srimani and Anuradha Patra. All of them have inherited the tenancy. Defendant Ashok Kumar Sett has been paying the rent on behalf of all of them. It is the specific case of the defendant that during pendency of the suit the parties to the suit arrived at a settlement and it was agreed that the plaintiff would construct a building over the property in suit. The defendant would vacate the tenanted property and the plaintiff would deliver the possession of a room on reconstruction and/or development of the suit property. Accordingly, after construction, the possession of a room measuring about 225 square feet was given to the defendant in place of 323 square feet let out to his father. The defendant denied the claim of reasonable requirement or violation of clause (m), (o) and (p) of Sec. 108 of the Transfer of Property Act or that he was defaulter in payment of rent. Learned Trial Court after considering the evidence on record was pleased to pass a decree on the ground of reasonable requirement. The defendant assailed the said judgement and decree of learned Trial Court in Title Appeal No. 138 of 2015 but the appeal was not accepted by the learned First Appellate Court.