JAMALUDDIN MOLLAH Vs. SK MOHAMMAD ASLAM

JUDGEMENT

(1.) This appeal is at the instance of the defendant against the judgment of affirmation dated 10th February, 2016 passed by the learned District Judge, Howrah, in Title Appeal No.157 of 2015 affirming the judgment and decree dated 29th August, 2015, passed by the learned Civil Judge (Junior Division), 4th Court, Howrah, in Title Suit No. 250 of 2012. The present appeal was admitted under Order XLI, Rule 11 of the Code of Civil Procedure only on the substantial question of law "whether in absence of relief claimed in the plaint, the Courts below were justified in passing a decree for eviction in favour of the plaintiff and/or maintaining the said decree in appeal by the learned first Appellate Court." The respondent as plaintiff filed a suit on 07.08.2012 for eviction of the defendant from the suit premises. The learned trial Court noted down the fact as per pleading in the plaint that - "Jamaluddin Mollah, the defendant was inducted as premises tenant by Sk. Hasem Ali, father of the plaintiff at the rate of Rs.132/- in respect of one shop room exclusive of electric charges payable by English calendar. Plaintiff's father gifted to him a bastu land measuring 12 sataks together with a structure including the shop room by registered deed of gift No.2503 of 2000. After the execution of the gift deed, plaintiff became the owner and the landlord of the defendant. Though, plaintiff became the landlord, his father continued to collect monthly rent from the defendant by granting rent receipts at the rate of Rs.212/- per month. Defendant defaulted in payment since the month of January, 2012. Plaintiff asked the defendant to pay rent repeatedly but he did not pay heed rather, insulted the father of the plaintiff. Plaintiff required the shop room for his own use and occupation as well as for his family. Accordingly, a notice of eviction dated 15.06.2012 was sent by registered post with A.D. through Lawyer to vacate the premises and deliver possession on the expiry of July, 2012. Defendant received the notice with signature. In spite of receipt of the said notice, defendant did not vacate the suit property and overstayed thereat which is unlawful and as a result, the defendant continued to occupy the suit premises as a trespasser. Since the defendant did not quit and vacate the suit premises, plaintiff filed the suit on the basis of the cause of action which arose on 01.09.2012.

(2.) As recorded by the learned trial Court, the defendant contested the suit by filing a written statement on 27.02.2013. The defence case, as per written statement as recorded by the learned trial Court, is as follows :

(3.) Save and except what has been admitted by the defendant, he denied all the other facts narrated in the plaint. It has been averred by the defendant that there was no agreement and/or contract between the defendant and the plaintiff rather, there was an agreement with Hasem Ali and, therefore, plaintiff was not entitled to any manner of relief. The defendant stated that the second floor in the building is totally vacant and on the ground floor, there are five rooms lying vacant and hence, the question of reasonable requirement is baseless and mere desire.