MANIK LAL SEN Vs. BIMAL KANTA CHATTOPADHYAY

JUDGEMENT

(1.) This second appeal at the instance of the plaintiff is against the judgment and decree dated 23rd Dec., 1988 passed by the learned 4th Additional District Judge, Burdwan in Title Appeal No. 211 of 1987 reversing those dated 28th April, 1987 passed by the learned Munsif, 2nd Court, Burdwan in Title Suit No. 384 of 1978. Plaintiff filed a suit for eviction of tenant and for recovery of khas possession of the suit premises. It is the plaint case that the suit premises mentioned in the schedule of the plaint originally belonged to Hemanta Kumar Sen and Madan Mohan Sen. While the said Sens were in exclusive possession as owner thereof, they had executed a Deed of Settlement in respect of the said property conferring life interest to their sister Smt. Bala Dasi. It was mentioned in the said deed that the suit property would devolve upon the legal heirs of Hemanta Kumar Sen on the death of Smt. Bala Dasi. According to the plaintiff, suit premises was let out by Hemanta Kumar Sen to one Radhakanta Bondopadhya at a rental of Rs.60.00 per month payable according to English Calendar and Smt. Bala Dasi used to enjoy the said rent paid by the then tenant Radhakanta. Radhakanta paid his rent up to the month of July 1960 and thereafter he surrendered the tenancy and at his request, Taraprasanna Chattopadhya, the defendant no.1 was inducted in the suit premises on the self same terms and conditions and so long as Smt. Bala Dasi was alive, either she herself or the plaintiff no.1 used to realise rent for the suit premises. The plaintiffs are the ultimate heirs of Hemanta Kumar Sen and as such after death of Smt. Bala Dasi on 17th Nov., 1974, they have become the owners of the suit premises as per the deed of settlement. Although, it was known to the defendant no.1 that the plaintiffs are the legal heirs of Hemanta Kumar Sen and they are the owners of the suit premises, the defendant no.1 wilfully did not pay rent to the plaintiffs and thereby became defaulter since the month of Nov., 1974. That apart the defendant without the consent of the plaintiff sublet the suit premises to defendant nos. 2 to 10. The plaintiffs reasonably required the suit premises for their own use and occupation inasmuch as the accommodation available to them in their residential premises was insufficient; they had no other reasonable suitable accommodation elsewhere other than the suit premises. Plaintiffs issued and served two notices to quit upon the defendant through their advocate under registered cover with acknowledgement due requiring them to quit and vacate the said premises after expiry of the month of Oct., 1978. Despite receipt of the notices the defendant did not vacate the suit premises nor paid the rent therefor. The defendant took the tenancy for his own use and occupation but he started running mess under the name and style 'Postal Mess' in the suit premises without permission of the landlord. Plaintiff, thereafter filed present suit for khas possession of the suit premises upon eviction of the defendant and for arrear of rent and damages.

(2.) Defendant no.1 contested the suit filling written statement denying all material allegations in the plaint and contended, inter alia, that the suit is not maintainable; there is no cause of action for the suit. The plaintiff is not entitled to any relief as claimed. Specific defence case is that Radhakanta was never a tenant in his personal capacity. He was a manager of the 'Postal Mess' which was the tenant and Radhakanta the member of the said 'Mess'. According to the defendant 'Mess' is the tenant for the suit premises and all its members were tenants collectively and jointly. Defendant no.1 does not admit the plaintiffs to be the owners of the suit premises. The defendant no.1 never sublet the suit premises to defendant nos. 2 to 10. He never defaulted in payment of rent. After death of Smt. Bala Dasi the defendant no.1 could not know who actually became the owner of the premises and for that rent was not paid. Notices sent by the plaintiffs are not valid and sufficient. Relationship of landlord and tenant has not been determined by the said notices. The accommodation available to the plaintiffs in the suit premises is sufficient and they have other suitable and reasonable accommodation in the Burdwan town besides the suit premises. The plaintiffs did not require the suit premises for their own use and occupation.

(3.) This second appeal was admitted by an order dated 18th May, 1989. The appeal was admitted on grounds nos. (i), (ii), (iv) and the added ground no. (x). To consider the merit of the appeal the following substantial question of law emerges out which are to be considered now.