PROVASH CHANDRA CHATTERJEE Vs. CHAND MOHAN BASAK

JUDGEMENT

(1.) This appeal is by the defendant in a suit for ejectment. The suit was instituted by the plaintiff-respondent against the defendant-appellant for the letter's eviction from premises No. 47A Durga Charan Mitra Street, Calcutta consisting of three bed-rooms, one kitchen-cum-store room-cum-dining room and also a privy. The ground of eviction was that the plaintiff reasonably required the suit premises for his own use and occupation and for the use and occupation of the members of his family. It was alleged that the plaintiff purchased the disputed premises by a registered sale deed dated 4th October, 1966 from the daughter and the son of one Satindranath Mitra who was the original owner of the disputed premises. After his purchase a letter was served upon the defendant for attornment of the tenancy in favour of the plaintiff. The defendant attorned the tenancy in favour of the plaintiff, served a combined notice dated 13th June, 1970 under Section 106 of the Transfer of Property Act and Section 13 (6) of the West Bengal Premises Tenancy Act, asking the defendant to quit and vacate with the expiry of the month of July, 1970. The defendant not having complied with the said notice, the plaintiff instituted the suit.

(2.) The defence, in short, was that the plaintiff did not require the disputed premises for his own use and occupation. It was alleged that the original owner Satin-dranath Mitra executed a deed of trust on the 25th April, 1952 by which he settled the disputed property with his daughter Sm. Satadal Basini Bakshi for her life with no power to sell the same except with the consent of her only son Dilip Kumar Bakshi, upon whom the said premises were to vest absolutely on the death of the said Sm. Satadal Basini Bakshi. The said Dilip Kumar Bakshi died on 22nd April, 1954 and the trust created by Satindra Mohan Mitra was still continuing under the trusteeship of Satadal Basini Bakshi and she had no power to sell the suit premises. It was further alleged that the plaintiff was a benamdar of Satadal Basini Bakshi and the attornment of the tenancy by the defendant in favour of the plaintiff was trade through mistake. It was further alleged that the plaintiff had served a notice of ejectment dated 16-5-67 and had filed an ejectment suit, being Ejectment Suit No. 1811 of 1967 in the city Civil Court at Calcutta. That suit was withdrawn by the plaintiff and thereafter, the present suit was instituted after service of a fresh notice of ejectment. The defendant alleged that the subsequent notice was bad in law inasmuch as the defendant's tenancy had already been determined by the earlier notice dated 16-5-67 and the present suit based on the second notice was, therefore, not maintainable.

(3.) On these pleadings the trial court framed the following issues: 1) Is the plaintiff the owner of the suit premises ? 2) Was there ever any relationship of landlord and tenant between the parties and is the suit at the instance of the plaintiff maintainable ? 3) Does the plaintiff reasonably require the suit premises for his own use and occupation? 4) Is the notice to quit served upon the defendant legal, valid and sufficient ? 5) Is the plaintiff entitled to a decree for ejectment? 6) What relief will the parties get? The trial court upon a consideration of the evidence adduced in the case came to the conclusion that Satadal Basini Bakshi and her brother had the right to sell the disputed property and the plaintiff had acquired title to the disputed property by his purchase. The trial court found that the plaintiff was not a benamdar of Satadal Basini Bukshi but he was the owner of the suit premises and that there was relationship of landlord and tenant between the parties. On the question of the plaintiff's requirement the trial court found that the rented accommodation where the plaintiff has been living was not sufficient and that the plaintiff required the suit premises for his own use and occupation. The trial court further found that the second notice was quite legal and valid and the suit was maintainable on the basis of the said notice, inasmuch as, the earlier notice issued by the plaintiff had been waived. On these findings the trial court passed a decree in favour of the plaintiff.