SK. KALOO @ KALOO Vs. MOHAMMAD MOHIUDDIN

JUDGEMENT

(1.) This appeal comes out of a Suit for recovery of possession of the Suit Premises and for recovery of mesne profit. The defendant is the appellant here and the respondent is the plaintiff in the suit.

(2.) The case as has been made out in the plaint is that the plaintiff is the absolute owner of the suit premises and the plaintiff got this portion by way of partition on and from 2.06.1982. The defendant was a tenant in the suit property mentioned in the schedule of the plaint at a monthly rental of Rs. 30 payable according to the English calendar. The defendant has defaulted in payment of rent since the month of Jan., 1984. The defendant has caused damage to the suit property and created nuisance and annoyance therein. Further allegation is that the defendant has altered the suit property. That apart the plaintiff requires the suit property for his own use and occupation and for the use and occupation of his family members. In the plaint it has been stated that the plaintiff's family consists of himself and his wife and two sons. The plaintiff had been residing in a room of the Holding No. 18, Jolapara, Masjid Lane as licensee under Golam Mohiuddin but Golam Mohiuddin revoked the licence and asked the plaintiff to vacate the said room. Finding no alternative, the plaintiff gave a notice to quit to the defendant through authorised advocate. The notice and its copy were sent by Registered Post with Acknowledgement Due as well as under Certificate of Posting. But the defendant refused to accept the notice and since in spite of notice the defendant didn't vacate the suit premises mentioned in the schedule of the plaint, the plaintiff filed the instant suit for eviction out of which this Second Appeal has arisen.

(3.) The defendant contested the suit by filing written statement. In his written statement the defendant denied all the material allegations of the plaintiff. It is contended by the defendant that he was inducted into the suit property as a tenant by Hafeez Mohammad Illias and Idris and Mohammad Abbas. The monthly rental for the suit property was fixed at Rs. 30. It was also contended by the defendant that he had paid rent upto the month of Dec. 1983 to the aforesaid persons against proper receipts. The defendant also stated that the plaintiff never realised rent from him and he is not guilty of damage and waste of the property as well as of alteration of the suit property. The defendant also contended that the plaintiff has not been residing in one room at Jolapara Masjid Lane as a licencee and that the plaintiff is not a qualified registered Chartered Accountant and that the defendant is in occupation of one shop room only and that the plaintiff has been possessing the remaining 4(four) rooms of the suit holding. The defendant further contended that the plaintiff has sufficient and reasonable accommodation and he does not require the suit premises for his own use and occupation reasonably. The defendant also challenged the legality and validity of the notice to quit. In his written statement the defendant has prayed for dismissal of the suit with costs. This suit was heard and disposed of by the then Learned Munsif, IIIrd Court at Howrah. The Learned Munsif dismissed the suit on contest with costs. Being aggrieved, the plaintiff preferred an appeal being Title Appeal No. 82 of 1989. The said appeal was heard and disposed of by the Learned Additional District Judge, Ist Court, Howrah. The learned appellate Court allowed the appeal on contest and sent the suit back on remand with a direction to the Court of trial to decide the Issue Nos. 4, 5 and 6 afresh with reference to the evidence on record. The learned appellate Court below also directed that opportunity may be given to both the parties to adduce further evidence in these issues only.