RAJENDRA MOHAN GHOSH Vs. KAUSHALLA DEVI

JUDGEMENT

(1.) This is a defendant's appeal against the judgment and decree dated the 29th May, 1971, passed by the learned Second Additional Subordinate Judge, Bhagalpur, in Title Appeal No. 9 of 1968/47 of 1968 affirming the judgment and decree passed by the learned Second Munsif, Bhagalpur. The suit was for eviction of the defendant appellant from the northern portion of a house situated in holding No. 60 (old), 58 (new). Ward No. 3, Circle No. 5, Mahalla Mosakchak within Bhagalpur Municipality on two grounds, namely, (1) personal necessity of the plaintiff and (2) breach of the terms of tenancy by defaulting payment of rent and of making alterations to the let out portion.

(2.) This case has had rather a chequered career because it appears that even on an earlier occasion the matter had to come before this court in Second Appeal No. 61 of 1963 which was disposed of on the 1st May, 1964, the suit for eviction having been dismissed on a certain technical legal ground. Be that as it may, the relevant facts for the instant appeal are that the plaintiff purchased the said holding under a registered deed of sale on the 6th of July, 1956. Even before the plaintiff had purchased this holding, the defendant-appellant used to reside in a portion of the building as a tenant. After the purchase by the plaintiff, the tenancy of the defendant continued . As it appears from the facts stated in the plaint that same sort of tenancy was created between the plaintiff and the defendant. Initially when the defendant was a tenant under the erstwhile landlord, he was paying a monthly rental of Rs. 45/-. When the new tenancy started, the rent was reduced to Rs. 41/3/- per month. Now, the case put forth by the plaintiff, so far as her personal necessity was concerned, was that even after making certain further additions to the existing construction in the house, it was not sufficient to accommodate all the members of the family. According to the plaintiff, the only bedroom in her possession was occupied by her and her younger son and her two daughters. In the newly constructed portion, one of the rooms on the ground floor was allotted to the private tutor and the other to the servants. One room of the newly constructed portion on the first floor was occupied by the plaintiff's father-in-law. The remaining rooms were, however, insufficient to accommodate five other sons of the plaintiff who had since grown up and required separate bedrooms for themselves. In fact, it was stated by the plaintiff that although two of her sons had become of marriageable age, but their marriages where postponed just due to the dearth of rooms. On the question of default, it was stated that the defendant had paid rent up to March, 1958, but thereafter in spite of repeated demands had not paid any rent. This was the case which was presented in the suit out of which this appeal arises. The suit, it may be stated, was instituted on the 5th March, 1965. Prior to the filing of the suit, however, a notice under Section 106 of the Transfer of Property Act dated the 9th Dec. 1964 (Ext. 1) had been served on the defendant, by which the defendant had been asked to vacate the tenanted portion of the house and to give vacant possession by the 1st Jan. 1965.

(3.) The defence put forth by the defendant-appellant was that he had not defaulted in payment of rent and that the plaintiff did not require the tenanted portion of the house for reasonable and bona fide use. One further ground taken in the suit was that the notice under Section 106 of the T. P. Act was not a valid notice.