GUROKESH DEBANGSHI Vs. BIMALENDRA NATH BANERJEE

JUDGEMENT

(1.) This appeal has been filed by the plaintiffs and it arises out of a suit for ejectment. The appellants filed the said suit for ejectment against the respondent and his brother Jadaben-dra Nath Banerjee who were the defendants Nos. 2 and 1 respectively in the suit.

(2.) The plaintiffs' case as made out in the plaint is as follows : The plaintiffs jointly purchased the property being holding Nos. 44-A and 44-B, Ramesh Mitra Road, Calcutta, by a registered Deed of Sale dated July 7, 1964, from Mohini Mohan Ghosh and others, The defendants were the tenants in respect of premises No. 44-A, Ramesh Mitra Road at a monthly rent of Rs. 93.50 p. according to English Calendar month under the vendors of the plaintiffs. On the day on which the Sale Deed was executed the plaintiff vendors sent a letter of Attornment to the defendant in respect of the said tenancy and the letter was accepted by the defendant. It was alleged that the plaintiffs purchased the property for their own use and occupation. Out of the two premises purchased by the plaintiffs they got possession of the premises No. 44-B only. But the accommodation there fa not sufficient. It was also alleged that the defendants were habitual defaulters, not having paid rent since December, 1963. The plaintiffs sent a notice of ejectment under registered post with Acknowledgment Due on August 6, 1964, asking the defendants to vacate with the expiry of the month of September, 1964. But in spite of such notice the defendants have not vacated. It was further alleged that the plaintiff No. 1 is a medical practitioner and he has been practising as a gynaecologist in Calcutta for a considerable time. He requires at least 4 rooms for his chamber and for his Nursing Home. The plaintiff No. 1 has got his wife and one unmarried school going daughter. The plaintiff No. 2 has got his wife and one son. It was alleged that besides these persons the plaintiffs have two unmarried sisters, one cousin and his wife, and their 8 children. It was alleged that they were all dependents in the family of the plaintiffs. It was further alleged that there was one cook and one servant in their family. The accommodation in 44-B, Ramesh Mitra Road was insufficient. They have only one bed room, one kitchen and one thakurghar in the first floor and only 3 rooms on the ground floor including the chamber and the store room. It was accordingly claimed that the plaintiffs required the entire suit premises for their own use and occupation. The suit was contested by the defendant No. 2 who is the respondent in this appeal. It was alleged by the defendant No. 2 that the plaintiffs have no cause of action and that the notice of ejectment was illegal, invalid and insufficient. The service of notice was also denied. The receipt of the letter of attornment was not denied. All other material allegations in the plaint were however denied. It was further alleged by the defendant that for some unavoidable reasons the rent for September and October could not be deposited with the Rent Controller in favour of the vendor. The rent for the month of November, 1963, was sent by money order on 16th December, 1963 to the vendor of the plaintiffs and it was refused by them on 31st December, 1963 and this amount could not be deposited with the Rent Controller as it was beyond time. It was further alleged that the rent for the period from 1st to 6th July, 1964, was sent to the vendor of the plaintiffs and that was refused. The defendant paid rent for the period from 7th July to 31st July, 1964, to the plaintiffs but they refused to accept the same, Thereafter the defendant had been depositing rent with the Rent Controller to the credit of the plaintiffs.

(3.) The trial court found that the service of notice on one of the tenants in common amounts to service of the same on the other tenant as well, and it further found that the notice was valid and sufficient. The trial court further found that the defendants were defaulters and the plaintiffs are entitled to a decree for eviction on the ground of default. On the question of reasonable requirement also the trial court found in favour of the plaintiffs. Before the trial court it was urged on behalf of the defendant No. 2 that his brother the defendant No. 1 who was a mental patient living in the Mental Hospital at Ranchi had died on the 27th December, 1970. It was contended that no substitution of the heirs and legal representatives of the defendant No. 1 having been made, the plaintiffs were not entitled to get a decree. On this point the trial court took the view that the evidence on record was not sufficient to come to the conclusion that the defendant No. 1 had died as alleged on behalf of the defendant No. 2. The trial court disbelieved the defendants' version on this point on the ground that the defendant No. 2 who filed an application for amendment of the written statement on November 22, 1971, did not mention about the death of the defendant No. 1 in that petition although according to him the defendant No. 1 died on 27th December, 1970. The trial court did not put any reliance upon the only witness examined on behalf of the defence on this point, and in that view of the matter passed a decree in favour of the plaintiffs.