SWADESH RANJAN RUDRA Vs. SACHINDRA NATH ROY

JUDGEMENT

(1.) The present Second Appeal is directed against a Judgment and decree of affirmance. The Suit for eviction was instituted by the plaintiff/respondent on the grounds, inter alia, of reasonable requirement for own use and occupation and for those of the plaintiffs' family after building and rebuilding. By the judgment and decree, dated 31st of July, 1984 the Learned Munsif decreed the said suit which was numbered as Title Suit No. 573 of 1976 and on appeal, being Title Appeal No. 784 of 1984, the Learned Additional District Judge, 10th Court, Alipore, by his judgment and decree, dated 28th February, 1985 dismissed the appeal and affirmed the judgment and decree of the Learned Munsif. The instant Second Appeal has been preferred on behalf of the defendants in the said Suit.

(2.) Shortly put, the relevant facts are that the plaintiff became the absolute owner of the suit property (2B, Ballygunge Station Road) on partition with his co-sharers; one Usha Ranjan Rudra, the predecessor-in-interest of the defendants, was a tenant in respect of the suit premises at a monthly rental of Rs. 40, payable according to English Calendar on the death of Usha Ranjan Rudra, the defendants, who are the sons, daughter and widow of the said tenant, became tenants by devolution of interest. Rent receipts, however, for convenience, were used to be granted in the names of defendants 1 to 3 only. The plaintiff is in occupation of a portion of the ancestral building at 15/1A, Ballygunge Station Road as a licencee under his co-sharer and has no other reasonably suitable accommodation elsewhere. Some of the specific defences in this connection are to be noted. Regarding the tenancy it is the defendants' case that after the death of Usha Ranjan, the original tenant, the landlord accepted and recognised defendants 1 to 3 as tenants the suit premises included the vacant land and as such the suit was barred for partial eviction; the service of ejectment notice also was contended to be not. proper and valid. The plaintiff's requirement either for own use and occupation or for the occupatian of his family or for building and rebuilding had also been denied. Before this Court the parties have contested on the question of ownership, service of notice, maintainability of the suit and entitlement of the plaintiff to a decree on the ground of reasonable requirement.

(3.) Regarding the question of ownership .it has been contended by Mr. Mitra, appearing on behalf of the appellants, that Exhibit 8, which is claimed to be a deed of partition, is not really so inasmuch as the properties covered by the said deed also included properties which were not joint properties but personal properties of parties to the said deed. The suit property really belonged to Satyen, another co-sharer of the plaintiff, in his personal capacity, though allotted to the plaintiff by the alleged deed of partition. There being no deed of exchange relating to the suit property Sachin did not acquire any ownership of the said property. According to Mr. Mitra, the intended effect of the alleged deed of partition and the nature of properties covered by the same clearly establish that the deed was not a deed of partition and as such could not effect any transfer of title to the plaintiff regarding the suit property. The ownership of the plaintiff having thus not been proved, the suit must fail on that ground. Mr. Dasgupta, appearing on behalf of the Respondent has, however, pointed out by reference to the deed that the deed was intended to operate either as a deed of settlement or partition and in either case it could validly transfer title. Mr. Dasgupta in this connection has also contended that before the two Courts below the question of ownership of the plaintiff had been conceded and no dispute was raised with regard to that. In such a position it was no longer open to the appellants to argue that point in Second Appeal. In support of his submissions on merits Mr. Dasgupta pointed out two specific portions of the contents of the deed.