AMAR PROSAD GUPTA Vs. ARUN KUMAR SHAW

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff and it arises out of a suit for eviction.

(2.) The case of the plaintiff was that on a partition among the plaintiff, his brother Rabi Prosad Gupta and the heirs of his other two brothers, Ramaprosad and Hariprosad, the shop rooms comprised in premises No. 1/A, Chowringhee Road, Calcutta were allotted to the plaintiff and his said brother Rabi Prosad Gupta, the major portion being allotted to the plaintiff and a small portion to his said brother Rabi Prosad. It was the plaintiff's case that after the partition, it was mutually agreed by and between the parties that the defendant who was a monthly tenant in respect of the said premises under all the co-sharers from before the partition at a monthly rent of Rs. 902 would pay to the plaintiff Rs. 800 per month as rent with effect from the 1st day of May, 1962 for the portion of the shop rooms allotted to him. The defendant paid rent to the plaintiff at the rate of Rs. 800 per month up to June, 1962. It was alleged that the defendant defaulted in payment of rent from the month of July 1962 up to the month of Jan. 1963. He also sublet and/or otherwise transferred or assigned a part of the said portion being the portion allotted to the plaintiff without the previous consent in writing of the plaintiff. Further, it was alleged that the said portion was reasonably required by the plaintiff for the purpose of making substantial addition and alteration thereto for raising a partition wall. The plaintiff determined the tenancy of the defendant of the part allotted to the plaintiff by a notice dated Dec. 12, 1962 and called upon him to vacate and deliver up vacant possession of the same on the expiry of the month of Jan. 1963. But the defendant did not comply with the notice and hence the plaintiff instituted the suit for his eviction.

(3.) The defendant entered appearance in the suit and contested the same by filing a written statement. His case was that he never agreed to pay rent for Rs. 800 per month for the plaintiffs portion. It was alleged that before the partition, although the tenancy was jointly held by four sets of landlords, the rent was severally paid by him in four equal shares. By a notice dated May 15, 1962 jointly signed by all the co-sharer landlords including the plaintiff, he was informed that the said premises No. 1/A, Chowringhee Road, Calcutta had been allotted to the shares of the plaintiff and his brother Rabi Prosad and the rent will be apportioned later on. In order to maintain good relationship and without prejudice to his right he paid Rs. 1,090 to the plaintiff and his said co-sharer towards the rent for May and June 1962 with a request to adjust the amount in excess with the agreed rent of Rs. 902 towards the rent for July 1962 and to send rent bills accordingly. By a letter dated Oct. 5, 1962, of which a copy had been forwarded to the plaintiff, Rabi Prosad Gupta informed the defendant that they had mutually agreed that for the present Rabi Prosad would get Rupees 130 per month and the plaintiff would get the balance. When, however, rent was tendered to the plaintiff he avoided to accept the same on various excuses. It was alleged that rents due to the share of Rabi Prosad had all along been paid and accepted by him and that rents payable to the share of the plaintiff had been deposited in the office of the Rent Controller, Calcutta. In short, the case of the defendant was that in spite of the partition among the plaintiff and his co-sharers, the original tenancy of Rs. 902 per month remained a single tenancy of which only rent payable to the plaintiff and Rabi Prosad was apportioned and, as such, the suit for eviction of the defendant from a portion of his tenancy was bad and not maintainable. He denied that he had sublet or assigned the said premises or the portion allotted to the plaintiff. He also denied the plaintiff's case of reasonable requirement.