SAJSAYYA Vs. KALI KRISHNA ADHIKARI

JUDGEMENT

(1.) This application under Sec. 115 of the Code of Civil Procedure is directed against Order No. 91 dated 29th March, 1994 passed by Second Munsif, Second Court at Krishnagar in Title Suit No. 188 of 1989 by which he rejected an application for amendment of the written statement.

(2.) Facts of the case is that the opposite party as plaintiff instituted a suit being Title Suit No. 188 of 1989 in the 2nd Court at Munsif, Krishnagar against the defendant/petitioner praying a decree for recovery of Khas possession of the suit property, which is one southern side room of the building standing on 4 sataks of land comprising in Plot No. 533, Khatain No. 200 in Mouza 46, Jagadanandapur, P. S. Nakasipara, District Nadiain which the defendant carries on business of cloth under the name and style of "Sajsayya". The defendant is a tenant of the suit room at a rental of Rs. 125.00 payable according to Bengali calender month. Plaintiff terminated the said tenancy by serving a notice under Sec. 106 of the Transfer of Property Act making him to deliver vacant possession of the suit property on the expiry of last day of Agrahayan, 1396 B. S. The defendant/petitioner contested the suit, alleging inter alia, that the suit is bad for defect of parties as the co-share and the subsequent property were not made parties. It was further alleged by the defendant that two co-owners of the plaintiff Mrs. Pus Das and Mr. Sukumar Das who were owners of a moiety share have transferred their share in the same to three sons of the plaintiff and the suit is not maintainable without impleading them. An application under Order 39 Rule 7 of the Code of Civil Procedure was filed by the defendant/petitioner but that was rejected on the ground that the petitioner is admittedly a tenant under the plaintiff and the question of actual ownership of the suit property does not require any consideration for disposal of the suit. The defendant/petitioner moved this Court in revision against that order and this Court also confirmed the said order of the Id. Munsif though directing it to consider the rival claims after affording opportunity to the parties in accordance with law. An application thereafter was filed on behalf of the defendant/petitioner under Order 1 Rule 10 of the Code of Civil Procedure for making the subsequent transferrers from the alleged co-sharers of the plaintiff but that petition was rejected by the impugned order as the matter is concerned between landlord and his tenant and no third party can intervene in the said matter. This first part of the impugned order has not been challenged before this Court and the second part of the said order which is concerned with the rejection of an application for amendment of the written statement for incorporation of the fact of purchase of the suit property by the petitioner was challenged in this revisional application.

(3.) Mr. B. K. Majumdar, learned advocate for the petitioner submitted that the plaintiff being not the absolute owner of the property, he having only his moiety share in the same cannot get any decree in the suit inasmuch as the owners of the other moiety share by purchase have not been made parties. He further submitted that the consistent case of the defendant/petitioner being that the plaintiff is the owner of the moiety share and the remaining moiety share has been purchased by his son that the questions of the eviction of the defendant does not arise. He accordingly submitted that these facts required to be incorporated in the written statement by way of amendment.