SIBENDRA NATH KANJILAL Vs. GANESH CHANDRA BASU

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree passed by the learned Additional District Judge, 10th Court, Alipore in Title Appeal No. 1102 of 1974 setting aside the judgment and decree passed by the learned Munsif, 4th Court, Alipore in Title Suit No. 403 of 1972 and in effect dismissing the suit although the learned Additional District Judge has not made any express order to that effect. Such an omission ought not to have occurred in the judgment of the learned Additional District Judge.

(2.) PLAINTIFF filed the aforesaid title suit for eviction of the defendant from the suit premises and for recovery of mesne profits. It was the case of the plaintiff in brief that the defendant was the tenant under the plaintiff in respect of the suit premises at the monthly rental of Rs. 60/- according to English Calender and that the defendant defaulted in payment of rent since May, 1972. The plaintiff required the suit premises for the purpose of building and rebuilding as the same was old and in dilapidated condition, and the plaintiff had sufficient means to undertake such work. The plaintiff accordingly sent a notice to quit dated 15.9.71 to the defendant terminating the tenancy with the expiry of October, 1971 and asking him to vacate the suit premises. The said notice was duly served upon the defendant who wrote a letter dated 6.1.72 to the plaintiff acknowledging the receipt of the notice dated 15.9.71 and intimating that he would vacate the suit premises and deliver possession of the same to the plaintiff within September, 1972. The defendant did not vacate the suit premises. Accordingly the plaintiff filed the suit for the relief as claimed basing on the plaintiff's notice dated 15.9.71 and the defendant's notice in the form of the letter dated 6.1.72.

(3.) BEFORE the learned Munsif, the learned Advocates on both sides made their argument only on the point of notice, dated 6.1.72 sent by the defendant intimating the plaintiff that he would vacate the suit premises, although some other issues were also framed in the suit. The learned Munsif treated the defendant's letter dated 6.1.72 as the defendant's notice to quit to the plaintiff under Section 13(1)(j) of the West Bengal Premises Tenancy Act and found the same as valid notice and passed the judgment and decree in favour of the plaintiff only on that ground.