MIRA GHOSH Vs. ARUP KUMAR JANA

JUDGEMENT

(1.) These appeals, at the instance of the landlord are directed against a common judgment and decree dated February 15, 2005 passed by the learned Additional District Judge, 4th Court at Midnapore (West) in Other Appeal No. 112 of 2003 and Title Appeal No. 113 of 2003 thereby reversing the judgment and decree dated July 13, 2003 passed by the learned Civil Judge (Junior Division), 1st Court at Midnapore in Other Suit No. 8 of 1993 and Title Suit No. 189 of 1992, respectively.

(2.) The brief facts which are essential for deciding the present appeal that the respondent was a monthly tenant in respect of the suit property under the sole appellant in both the appeals (hereinafter referred to as "the landlord'). In October 1992, the respondent filed a suit being O.S. No. 189 of 1992 against the landlord and her husband before the 1st Court of the Munsif, Midnapore (hereinafter referred to as "the first suit"), claiming a declaration that his tenancy in respect of the suit property is subsisting, a decree for permanent injunction restraining the defendants in the suit from disturbing his peaceful possession of the suit property and not to evict him from the suit property without due course of law. In the said suit, the plaint case of the present respondent was that he was occupying the suit property as a tenant thereof under the defendant landlord at a monthly rental of Rs. 395/-; in April, 1991 the defendant no. 1 and her husband, the defendant no. 2 demanded delivery of possession of the suit property from him which gave rise to certain disputes between them, the parties sought interference of the concerned Ward Municipal Commissioner and on the request and pressure of the local people, on August 08, 1991 he entered into an agreement with the defendant no. 1 landlord that he would vacate the suit property by October 31, 1992 which was illegal, invalid and not enforceable in law against him. He further alleged that in the last week of the month of September, 1992 defendant no. 1 landlord and the defendant no. 2 called upon him to vacate the suit property on the expiry of October 31, 1992 as per the said agreement dated August 08, 1991 and thereafter started to create illegal pressure on him to vacate the suit property. Both the landlord and her husband contested the first suit filed by the respondent. They jointly filed the written statement in the first suit alleging that subsequent to the creation of his tenancy, by the said agreement dated August 08, 1991 the plaintiff tenant agreed in writing with the landlord to deliver vacant possession of the suit property on October 31, 1992 and the said agreement is enforceable in law. They further alleged that the landlord also reasonably require the suit property for herself and her family members and after service of a notice and ejectment upon the plaintiff tenant, she has also filed the ejectment suit against the plaintiff tenant. In fact, before filing the written statement in the first suit, the landlord had filed a suit being O.S. 3 of 1993, before the learned 1st Court Munsif, Midnapore (hereinafter referred to as "the second suit") against the respondent tenant, claiming a decree for his eviction and recovery of khas possession of the suit property. The first ground of eviction of the respondent tenant in the said second suit was founded on Section 13(1)(k) of the Act of 1956, that is, in spite of the respondent, subsequent to the creation of his tenancy, by said agreement dated August 08, 1991 entered into he failed and refused to vacate the suit property within October 31, 1992. The second ground of eviction of the respondent tenant was founded by the landlord on Section 13(1)(ff) of the Act of 1956, that is, she reasonably requires the suit property for the business of her son and the appellant no. 2, her husband. The landlord further claimed to have filed the suit after service of a notice under Section 13(6) of the Act of 1956. The respondent in these appeals, as the defendant filed his written statement in the said second suit denying all material allegations made in the plaint.

(3.) Both the suits were heard by the learned Civil Judge, (Junior Division), 1st Court at Midnapore, District-Midnapore (West) by way of analogous hearing. The learned trial Judge held that the issues involved for deciding both the suits are more or less identical and, as such, if the issues framed in the second suit filed by the landlord claiming eviction of the tenant from the suit property are discussed then, at the same time the issues of the first suit filed by the tenant, claiming a decree for declaration that his tenancy in respect of the suit property is still subsisting may be decided within those issues framed in the second suit. Accordingly, the learned trial Judge framed the following issues in the second suit.