ASHALATA DUTTA Vs. BHOLANATH GANGULY

JUDGEMENT

(1.) THIS appeal is directed against the two concurrent findings and decrees of the learned Courts below. Both the learned Courts below held that the suit is bad for non-joinder of necessary parties. Over and above the learned appellate Court below has held that eviction notice under Section 13(6) of the West Bengal Premises Tenancy Act is bad. The reasoning of both the learned Courts below are that tenancy right has been acquired by the father of the defendant, upon his death it devolved not only upon sole defendant but also upon the two daughters who were left behind when the father of the sole defendant died. Both the learned Courts below, however, have not adverted to the real question and/or controversy. The suit as it has been framed in the plaint, has been filed against the sole defendant treating him as a sole tenant. There is no whisper in the plaint that the sole defendant had acquired this tenancy right from his father to the exclusion of other heir and heiress and legal representatives. Originally in the written statement this case and averment of the plaintiff/appellant was not controverted but by way of amendment, it is stated that the tenancy right stood in the name of the father of the sole defendant. After his death the sole defendant along with his married sisters have acquired the tenancy right jointly. It is admitted in the amendment application that rent receipt stood in the name of the sole defendant until the same was determined. No prayer has been made as and by way of counter-claim, for declaration that the sole defendant is not the only tenant but his sisters are also joint-tenants along with the sole defendant. No counter suit has been filed for establishing this joint tenancy right. In fact there is no serious claim and/or assertion that the tenancy right is a joint one.

(2.) IN view of the aforesaid position both the learned Courts below ought not to have exercised with futility that the notice of eviction was bad in view of non-service thereof upon the daughters. The plaintiff/appellant has not averred that the tenancy right has been inherited by the sole defendant from his father. The plaintiff/appellant's case is that the defendant has acquired the tenancy right independent of his father's right. Therefore, it was not at all necessary to serve any notice for eviction upon the sisters of the sole defendant. Accordingly, the sisters of the sole defendant are not at all necessary party. Moreover, from the evidence and averments it appears to me that elders sister was married before the death of the father of the sole defendant who died in 1953. Moreover, it is admitted that younger sister of the sole defendant was not residing in the suit premises and she has run away after having been married without having consent of the member of the family. So the younger sister is admittedly not residing in the suit premises. Therefore, requirements of Section 2(h) of the West Bengal Premises Tenancy Act, 1956, in order to claim herself as a heiress, are not satisfied. So on these grounds also the sisters of the sole defendant cannot claim any right a fartiorari are not necessary parties.

(3.) AS the suit has been dismissed on the above technical ground and both the learned Courts below did not deal with on merit, I set aside the findings of both the learned Courts below and remand this matter to the learned trial Judge for expeditious disposal thereof on merit. The learned trial Judge shall dispose of the suit on merit in accordance with law as directed above within a period of three months from the date of communication of this order. It would be open to the parties to take steps in accordance with law on any changed circumstances. Accordingly, the appeal is allowed. Let the records of the Courts below be sent down forthwith by special messenger at the costs of the appellant/plaintiff, who shall put in (sic) requisite within one week from date. Appeal allowed.