BHAGYALAKSMI DEY Vs. NANDA DULAL KUNDU

JUDGEMENT

(1.) THE plaintiff is the appellant in this second appeal which arises out of the judgment and decree of the learned additional District Judge, Burdwan, reversing the judgment and decree passed in the suit instituted by the plaintiff for eviction of the defendants from the suit premises on the grounds specified in clauses (i) and (f) respectively of Section 13 (1) of the West Bengal premises Tenancy Act, 1956 (hereinafter referred to as the Act ). The suit was resisted by the defendants who challenged the grounds for eviction as well as the plaintiffs' ownership of the suit premises. At the trial, in view of the ordinance amending Section 17 of the act, the plaintiffs did not agitate the ground of default and the learned Munsif decided this ground against the plaintiffs. The grounds of eviction were confined to the requirement of the premises for the purpose of building and rebuilding as well as the plaintiffs' own occupation.

(2.) THE plaintiff No. 1 and 2 purchased by a registered kobala dated 28th jaistha, 1367, 'ka' schedule house from its previous owners and plaintiff Nos. 3 and 4 purchased by a registered kobala dated 1st Aswin, 1367, the remaining portion of the house from the previous owners and thus plaintiff Nos. 1 to 4 have become the joint owners of the 'ka' schedule house which is a two storied building. The defendants allege that they were inducted into the premises long ago by its previous owner rajlakshmi Shah at a monthly rental of Rs. 25/ - and has been paying her the stipulated rent. The defendants allege that they learnt from the notice of the plaintiffs that they have purchased the house, and as they demanded separate rents, defendants deposited rents separately. It is further alleged that the defendants were never tenants of Mira shah and Dhira Shah, the vendors of the plaintiffs and they have no knowledge that Mira and Dhira got the property from Rajlakshmi. It is therefore contended by the defendants that by the alleged purchase the plaintiffs have not become the owners of the house. The learned Munsif held that in view of the fact that the defendants were continuously paying rents to the plaintiffs who claim to have acquired title in the property by virtue of the kobalas, they were estopped by attornment from disputing plaintiffs' title. He has further held that irrespective of the principle of estoppel, although the defendants have set up title in one Rajlakshmi Shah, who has not been examined, they have not produced a single dakhila granted by her or the hatchitas which are with her. He further came to the view that there was no evidence that since Jaistha, 1367, the defendants were paying rents to any body excepting the plaintiffs. On the question of bonafide requirement, it is alleged by the plaintiffs, that the husbands of the plaintiff Nos. 1 and 2 and father of the plaintiff Nos. 3 and 4 have a statutory shop on the other side of the lane which is run under name and style of 'dey Brothers' and that the said shop was in a tenanted house. It is alleged in the plaint that the landlord of this shop has asked the husband of the plaintiff Nos. 1 and 2 to vacate the premises. The plaintiffs also have alleged that they require the premises for their residential purposes. The learned Munsif found in favour of the plaintiffs on this issue. The suit was therefore decreed by him.

(3.) ON an appeal, the learned additional District Judge held that the defendants had not been inducted by the plaintiffs and hence could not be estopped in spite of attornment from challenging the plaintiffs' title. The learned district Judge considered the evidence and the materials on record. He found that the name of Rajlakshmi from whom the defendants have taken out the tenancy was in the Municipal assessment Register and that the plaintiffs after their purchase had their names mutated in her place. It has been found by the lower appellate court that the plaintiffs have failed to prove that the woman, namely, Sadayee from whom they have received the conveyance was the widow of Dukhiram in whose name the settlement record stood. He has further found that the plaintiffs have failed to prove that Dukhiram had a son named Shibaram and that this Shibaram had two daughters named Mira and Dhira. No explanation, according to the learned Additional District Judge was offered for the non-examination of Sadayee, dhira and Mira. The appellate court therefore on these materials came to the view that the plaintiffs have failed to prove their ownership of the said premises.