KALYANI SEN Vs. SK ENAYETULLAH

JUDGEMENT

(1.) These two appeals arise from the same suit and the decree passed therein. They have been heard together.

(2.) First Appeal No. 123 of 1957 is directed against the decree for khas possession of the suit premises on eviction of the defendants therefrom passed by the Second Court of the Additional Judge at Alipore in Title Suit No. 32 of 1956. This appeal has been preferred by Defendant No. 3 joining the plaintiffs as respondents and also joining the other two defendants as respondents. It may be mentioned here that the appellant Smt. Kalyani Sen, who was joined in the trial Court as the Defendant no. 3 during the pendency of the suit, is no other than the wife of D. C. Sen who was the Defendant No. 2 in the trial Court and is the Respondent No. 12 in this Court.

(3.) The suit was originally filed by 10 plaintiffs who were the owners of the premises No. 51, N. Gorcha Road against two persons of whom the first defendant, P.S. Paul was the tenant who took settlement of the suit premises as a monthly tenant under the plaintiffs, and the other defendant was a person who according to the plaintiff has been given possession of the suit premises by the said tenant Sri P.S. Paul, in what capacity the plaintiffs did not know. The plaintiffs prayed for eviction and also for arrears of rent and also for damages on the rental basis for the period after the tenancy has been terminated by notice under Section 106 of the Transfer of Property Act. Ground for eviction was for default in payment of rent and also reasonable requirement of the suit premises by the landlords for their own use and occupation. The suit was contested by both the defendants who filed separate written statements raising different pleas. Those pleas were all negatived by the learned Subordinate Judge who has passed the decree and for the purpose the present appeals have lost their importance. In this appeal only one point has been urged which arose from certain events that happened during the pendency of the suit in the trial Court. Those events are that when the suit was pending Smt. Kalyani Sen, wife of the Defendant No. 2 Dhiresh Chandra Sen, purchased the right, title and interest in the suit premises of the plaintiff No. 4, Msst. Ayesha Khatun, by a kobla dated September 4, 1953. Upon that purchase a petition was filed on behalf of the Defendant No. 2 on September 8, 1953, raising and objection that the remaining plaintiffs could not proceed with the case without impleading the said Kalyani Sen as a party in the suit. Thereafter, the suit was adjourned on December 15, 1953, the remaining plaintiffs filed an application stating the fact that the purchaser Kalyani Sen was none other than the wife of the Defendant No. 2 and was residing with the said Defendant No. 2 in the same premises and prayed that said Kalyani Sen be impleaded as pro forma defendant in the suit for the reason stated in para 4 of the application in these terms : That though the trouble by the plaintiff No. 4 was mas made during the pendency of the suit, yet to meet the objection of the defendant, it has become necessary to join the said purchaser Smt. Kalyani sen as a pro forma defendant, otherwise a controversy may be raised by the said defendant. The prayer of the plaintiffs for adding Kalyani Sen a party defendant to the suit was not objected to and by an order dated January 21, 1954, the learned Subordinate Judge added Kalyani Sen in place of the plaintiff No. 4 and transposed her to the category of pro forma defendant.