HARI NARAYAN SHAW Vs. SUNIL KUMAR GHOSH

JUDGEMENT

(1.) THE present Appeal is directed against a Judgment of affirmance dated 9th November, 1989 passed by the additional District Judge, 4th Court, Burdwan in Title Appeal No. 231 of 1988 confirming the judgment and decree passed by the 2nd Court of munsif at Burdwan dated 29th November, 1988 in Title Suit No. 247 of 1983. The defendant-tenants are appellants before this Court. The plaintiff respondent filed a connected suit in a capacity as the owner of the suit property and the said suit is for eviction of the defendants therefore. Two defendants have been impleaded in the said suit and in paragraph 4 of the plaint the defendant No. 2 has been specifically described as a tenant under the plaintiff. A notice under Section 13 (6) of the West Bengal premises Tenancy Act has been issued against both the defendants. Section 13 (6) of the West Bengal Premises Tenancy Act contemplates that the said notice has to be given to the tenant by laying stress on the tenant. The tenant has been defined in Section 2 (h) of the said Act which means any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be payable. The rental of the premises is at the rate of Rs. 30/- per month payable according to the english Calendar month. The further version of the plaintiff in the plaint is that the Defendant No. 1 is a son off the Defendant No. 2 and when the defendant No. l was the minor, the Defendant No. 2 approached the plaintiff for letting out the suit premises and as such the said defendant was inducted as a tenant though the receipts were used to be granted in favour of the Defendant No. 1 at the request of the Defendant No. 2.

(2.) THE suit was contested and on filing of pleadings there are as many as ten issues were framed by the Trial Court. The suit is filed on the ground of default and reasonable requirement. It is significant to mention in this context that apart from framing of the issues on the merit of the case relating to the grounds specified under Section 13 (1) of the West bengal Tenancy Act, three issues framed namely, (a) about the maintainability of the suit, (b) whether the defendants are the tenants: (c) if the notice is legal and valid and whether it has been served on the defendants.

(3.) THE Trial Court on a contested hearing of the suit decreed the same as a result of which plaintiff became entitled to a decree for recovery of khas possession of the suit premises on eviction of the defendants and also for other ancillary reliefs. Against that an appeal being Title Appeal No. 231 of 1988 was preferred and the same on being transferred was heard and disposed of on contest by the 4th Court of Additional District Judge at burdwan and the Appeal Court dismissed the said appeal. At the penultimate portion of the concluding part of the judgment under appeal, the appeal Court has saliently observed that excepting the point urged in the appeal, no other point has been urged before the Appeal Court: In the present Memo of Second Appeal a ground was taken about due service of the notice.