DUKARI SAHA Vs. KUMARISH CHANDRA GARAI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 3rd Court, Burdwan in Title Appeal No. 264 of 1978 allowing the appeal, setting aside the judgment and decree passed by the learned Munsif and sending the case on remand for a fresh decision allowing the parties to adduce further evidence for the purpose of ascertaining whether the structure constructed by the tenant/defendant on the roof was permanent.

(2.) Plaintiff/appellant Dukari Saha instituted Title Suit No. 225 of 1973 in the 2nd Court of Munsif, Katawa against the defendant/respondent for ejectment and recovery of Khas possession of the suit premises. The plaintiff's case was that he was the owner of the suit premises and the defendant was a monthly tenant under him in respect of the same at a rental of Rs. 26/- payable according to Bengali calendar month. The defendant defaulted in payment of rent from Shraban 1378 B.S.He also raised a permanent structure with wooden and asbestos frame on the verandah of the suit premises without consent of the plaintiff. The defendant also raised a permanent structure at the south-east corner of the roof of the suit premises without the consent of the plaintiff and in spite of strong objection from him. The defendant also caused material deterioration in the roof of the suit premises. The plaintiff also required the suit premises for his own use and occupation as he had no other reasonably suitable accommodation. A combined notice under S.106, T.P. Act and under S.13(6) of the West Bengal Premises Tenancy Act was served upon the defendant asking him to quit and vacate the suit premises and deliver up khas possession to the `plaintiff with the expiry of Poush, 1379 B.S.the defendant received the notice on 22-11-72 but did not comply with it.

(3.) The defendant contested the suit by filing a written statement in which the material allegations were denied. It was contended inter alia that the notice was not legal, valid and sufficient and that the structure on the, verandah of the suit premises was a temporary improvised structure constructed with the knowledge of the plaintiff and the defendant started business in `bidi'. The structure on the roof of the suit premises was also a temporary and improvised structure and the same was in existence from before and the defendant merely replaced the tins on the roof by tiles about 6/7 yrs before. It was further pleaded that the plaintiff had many houses at Katawa and he did not reasonably require the suit premises for his personal use and occupation. The alleged default was also denied. According to the defendant, on refusal by the plaintiff to accept rent the defendant deposited the rent with the Rent Controller regularly and after institution of the suit he has deposited rent in the Court.