NETAI CHANDRA DAS Vs. AMARENDRA NATH BANERJEE

JUDGEMENT

(1.) -This second appeal by the defendants is directed against the judgment and decree dated 7.3.91 passed by the learned Additional District Judge, 9th Court, Alipore in T.A. 138 of 1990 affirming those passed by the learned Munsif, 4th Court, Alipore dated 28.9.89 in Title Suit 141 of 1977.

(2.) Plaintiff-respondents instituted the said suit for eviction of the tenant-defendants and mesne profits contending inter alia that by a registered deed of lease dated 14.8.59 between the plaintiffs and the defendants the latter took lease and came into occupation of all that one-storeyed building with two R.T. sheds on the first floor roof being premises No. 72E, Harish Mukherjee Road within Bhowanipore P.S. as described in the schedule of the plaint for a period of 21 years commencing from 1.8.59 for residential purpose only on the terms and conditions embodied therein. Plaintiffs are owners of the said premises. At the time of commencement of the lease and also thereafter plaintiffs used to live at Allahabad as plaintiff No. 1 was in service there. After retirement of plaintiff No. 1 from service in 1975, plaintiffs had to return to Calcutta and live at Mahestala for want of accommodation in Calcutta. As they were in urgent need of accommodation in Calcutta, they repeatedly requested the defendants to make aver peaceful and vacant possession of the land in the western portion of the premises and the roof with 2 R.T. sheds as per term and condition of the lease so that they could construct rooms for their own use and occupation. But the defendants on one pretext or other delayed the matter. Therefore, a lawyer's notice dated 20.7.76 was sent to the defendants by registered post with A/D calling upon the defendants to deliver vacant possession of the said portion with the expiry of the month of August, 1976. Defendant No. 2 sent a reply to that notice refusing to comply with the said notice on false and frivolous grounds. As the defendants did not observe and perform the terms and conditions of the lease they committed breach of express conditions and/or covenants of the lease. They also caused breach of covenants of the lease by defaulting in payment of municipal taxes in respect of the demised premises and by defaulting in payment of rent from September, 1976 to January, 1977. So the plaintiff, again served a notice dated 1.12.76 forfeiting the lease for breach of covenants and intimating that the plaintiffs would re-enter the demised premises with the expiry of the month of January, 1977. But in spite of service of the said notice, the defendants failed and neglected to vacate the demised premises.

(3.) On 24.9.82 plaintiffs filed a petition of amendment of the plaint to the effect that the lease which commenced on and from 1.8.59 for a term of 21 years expired on 31.7.80 and the lease having determined by efflux of time plaintiffs are entitled to recover of khas possession of the demised premises on that ground also. The amendment was allowed.