BHARAT EARTH MOVERS LTD Vs. PURANMAL KEDIA

JUDGEMENT

(1.) THESE three first appeals were heard analogously as these arose out of a common judgment dated 20th December, 2007 passed by the learned Civil Judge (Senior Division), Second Court, alipore, District South 24-Parganas, thereby disposing of three suits which were heard analogously. By the said common judgment, all the three suits being Title Suit No. 6 of 1992, Title Suit No. 74 of 1992 and Title Suit No. 79 of 1992 were decreed.

(2.) BEING dissatisfied, the common defendant of those three suits has come up with the present three first appeals.

(3.) THE case made out by the plaintiff-respondent in Title Suit No. 6 of 1992 may be summed up thus: (a) The plaintiff was the Karta of a Hindu Undivided Family governed by mitakshara School of Hindu Law carrying on business under the name and style of Puranmall Narayan Prasad Kedia. The defendant No. 2 is the wife of the said Karta. (b) By a registered deed of covenant dated September 7, 1961 between the defendant No. 2 and East Coast Commercial Company Ltd. , the defendant No. 2 purchased the house together with land measuring 9 cottahs 7 chittaks approximately situated at 9/2, Dover Lane, Calcutta, ps Ballygunge. (c) Sometime in the year 1980, the defendant No. 2 commenced the construction of the building after demolishing the then existing structure and constructed a multi-storied building consisting of number of flats. (d) During the period of construction, by two agreements dated April 28, 1980 and April 6, 1981 made between the plaintiff and the defendant no. 2, the plaintiff agreed to purchase such flat bearing No. 2s on the southern side of the 2nd floor measuring an area of 1700 sq. ft. and also open parking space for one car on the ground floor and one servants quarter on the mezzanine floor on the terms and conditions contained in the aforesaid two agreements for sale. (e) Pursuant to those agreements, the plaintiff received possession of the said flat and open car parking space and the servants' quarter. (f) By and under an indenture of lease dated June 20, 1983, the plaintiff as the Karta of the said Hindu Undivided Family leased out to the defendant No. l the said flat No. 2s along with the said open car parking and one servants' quarter on the terms and conditions and covenants contained in the said indenture of lease of 99 years commencing from the date of possession of the demised flat. (g) According to the terms of the said lease, the defendant No. l would pay the monthly reserved rent of the suit flat at the rate of Rs. 592/- a month and also pay maintenance charges, corporation tax and electrical charges and other expenses in respect of the said flat and it was clearly stipulated that the monthly rent payable by the defendant No. l would be adjusted month by month out of the security and/or advance paid to the plaintiff by the defendant No. 1 in terms of the said lease. (h) Pursuant to the terms and conditions of the said lease, the plaintiff on or about July 27, 1983 duly made over possession of the said flat to the defendant No. l upon payment of a sum of Rs. 7,03,296/- as security deposit as per terms of the lease. The monthly rent payable by the defendant No. l had been adjusted out of the said security deposit up to september 30, 1989 and the defendant had also paid the electric charges up to July, 1989 and maintenance charges up to August, 1989. The plaintiff had adjusted and granted credit to the defendant No. l of the respective amount of rent against the bills issued by the plaintiff to the defendant no. l from time to time. (i) The electric meter in respect of the said flat is in the name of the plaintiff. The bills of CESC Ltd. are made in the name of the plaintiff who in turn raises and submits bills to the defendant No. l for the exact amount thereby realising the amount from the defendant No. 1 for payment to the CESC Ltd. (j) After taking over possession of the said premises, the defendant No. l had committed various breaches of the terms, conditions and covenants of the said lease and in particular, made alterations and additions by demolishing several constructions and raising permanent structure. The defendant No. 1 had converted the eastern side bedroom into an extra kitchen, thus, damaging the construction of the building. The defendant no. 1 had illegally cut the floor and joined the pipe carrying kitchen-waste-water with the pipe carrying bathroom-waste-water which eventually crated jamming and damaged the sanitation system of the building in contravention of the various terms and conditions of the said lease. (k) In the premises, the plaintiff was compelled to bring to the notice of the defendant No. l the aforesaid breaches and called upon the defendant no. l, inter alia, by its letter dated March 14, 1985 to remedy the said breaches with specific threat that otherwise, the plaintiff would be compelled to terminate the said lease. In spite of service of such notice, the defendant No. l had failed to remedy the said breaches in respect of the wrongful addition and alteration to the said flat in violation of the building Rules of the Calcutta Municipal Corporation Act and without obtaining sanction from the Calcutta Municipal Corporation. (1) In the month of February 1989, it transpired that in answer to certain queries raised by the Commissioner of Income-Tax, West Bengal Circle x, the defendant No. l deliberately misrepresented before the commissioner of Income-Tax that the defendant No. l had taken the demised flat at the rate of Rs. 400/- per sq. ft. along with car parking space and servants' quarter for an additional lump sum price of rs. 20, 000/ -. The object of the defendant No. l in making such misrepresentation before the Commissioner of Income-Tax, West Bengal circle X was to assert that the defendant No. l had purchased the demised premises and there was a transfer of the said demised premises by the plaintiff to the defendant No. l. (m) The defendant No. l in spite of his full knowledge that he had taken the said flat on lease from the plaintiff subject to payment of the monthly rent reserved and performance and observance of the terms and conditions and covenants as contained in the indenture of lease, made out such false statement and as such, the said false statement was tantamount to an express repudiation and renouncement of the relationship of the lessor and lessee between the plaintiff and the defendant No. 1 in terms of the said lease. The said conduct also amounted to repudiation of the plaintiffs title to the property. (n) As a result of such misrepresentation and the statement made by the defendant No. l knowing those to be false, the defendant No. l had set up right, title and interest in itself and had renounced its character as a lessee by setting up and claiming such right, title and interest in itself and by reason thereof had incurred the liability of forfeiture of the said lease. (o) By a notice dated October 23, 1989 written for and on behalf of the plaintiff addressed to the defendant No. 1, the plaintiff determined and forfeited the said lease of the said flat and called upon the defendant no. l to quit, vacate and deliver vacant and peaceful possession of the said flat on the expiry of the month of November, 1989. By the said notice, the defendant No. l was also informed that in default of vacating and delivering possession of the said flat, legal proceeding would be instituted for recovery of possession and other relief. (p) Notwithstanding the expiry of the said period mentioned in the notice, the defendant No. 1 failed and neglected to vacate and deliver vacant and peaceful possession of the flat to the plaintiff. (q) The defendant No. l was also guilty of committing acts of waste in the said flat by addition and alteration and continuous damage on the floor wall. Hence the suit for eviction and arrears.