DHIRENDRA NATH HAZARI Vs. ALOKE KUMAR PANDA

JUDGEMENT

(1.) -This second appeal at the instance of defendant No. 2 is directed against the judgment and decree dated 30.11.90 passed by the learned Additional District Judge, 11th Court, Alipore, in Title Appeal No. 105 of 1990, affirming those of the learned Munsif, 3rd Additional Court, Alipore, in Title Suit No. 57 of 1988 dated 23.11.89. The respondent No. 1 Aloke Kumar Panda filed Title Suit No. 421 of 1987 which Was subsequently transferred to the learned Munsif, 3rd Additional Court, Alipore, and renumbered as Title Suit No. 57 of 1988 against the appellant and two others for ejectment and damages, alleging inter alia that defendant No. 1 Biswanath Chakraborty was a monthly tenant in respect of two rooms, common privy and bath and common passage in premises No. 38/C, Protapaditya Road, Tollygunge, at a monthly rent of Rs. 65/- payable according to English Calendar month. The defendant No. 1 defaulted in payment of rent from the month of September, 1987. He has also sublet and/or assigned and/or transferred the suit premises to the defendants Nos. 2 and 3-Dhirendra Nath Hazari and Sankar Chakraborty respectively without the written permission of the landlord. The defendant No. 1 has also demolished certain portion of the suit premises in violation of the provisions of clauses (m), (o), (p) of section 108 of the Transfer of Property Act and he is also guilty of causing nuisance and annoyance to the neighbours including the plaintiff. The plaintiff accordingly sent a notice of ejectment dated 4.9.87 to the defendant No. 1 by registered post with A/D and the notice was duly served upon the defendant No. 1.

(2.) Neither the defendant No. 1 Biswanath Chakraborty nor defendant No. 3 Sankar Chakraborty appeared before the Court or contested the suit. Defendant No. 2 Dhirendra Nath Hazari, the present appellant, appeared and contested the suit by filing a written statement having all the material allegations of the plaintiff and contending inter alia, that the defendant No. 1 is not a monthly tenant in respect of the suit premises and that he is a tenant in respect of the suit premises on payment of rent of Rs. 30/- per month to the previous landlord since 1965 but the landlord did not grant receipt to him. The defendant No. 1 did not sublet, assign or transfer the suit premises to the defendant No. 2. The defendant No. 1 is not a tenant under the present plaintiff and as such the notice should have been served upon the defendant No. 2, who is a tenant in respect of the suit premises under the previous landlord and the notice was therefore illegal and inoperative. The other grounds of ejectment were also denied.

(3.) Upon a consideration of the evidence on record, the learned Munsif has held that the defendant No. 1 is a tenant in respect of the suit premises and that he has defaulted in payment of rent since September, 1987 and is not entitled to get protection under section 17(4) of the West Bengal Premises Tenancy Act as he has not complied with the provisions of section 17(1) of the said Act. It has further been held by him that the defendant No.1 has sublet the suit premises to the defendants Nos. 2 and 3. He has further held that the defendant No. 1 has not caused any damage to the suit property or committed any nuisance or annoyance. He has accordingly decreed the suit directing the defendants Nos. 1, 2 and 3 to vacate the suit premises within six months from the date of the order. The prayer for mesne profits was also allowed.