NEZMA KHATUN CHOWDHURY Vs. ABDUL KHALEQUE

JUDGEMENT

(1.) This appeal arises out of leave granted by this Division in civil petition for leave to Appeal No. 1302 of 1999 against the judgment and order dated 22-7-1999 passed by a Single Bench of the High Court Division in Civil Revision No. 1637 of 1998.

(2.) The case of the appellant was that the respondent is an evictable tenant under her (appellant) in respect of the suit shop at a rental of Tk. 700/- per month; that the appellant decided to construct a building after demolishing the shop in existence and obtained necessary permission from Sylhet Pourashava and for which, she requested the respondent to vacate the suit premises through her constituted attorney after paying rent of December, 1990 but this was not complied with, rather the respondent was depositing the rent in the account of the appellant's son Md. Ehtesham Ahmed Chowdhury in Pubali Bank, Mohila College Branch, Sylhet with bad motive. It was further alleged by her that the respondent is a defaulter as he did not pay the rent of December, 1990. It was also alleged that the respondent demolished the pucca wall of the suit shop illegally and without her permission and amalgamated the suit shop with the shop adjacent to west of the suit shop which caused loses of Tk.10,000/-. Upon all these allegations, the appellant issued notice under Section 106 of the Transfer of Property Act for terminating the tenancy but despite of such notice the respondent did not vacate the possession of the suit shop. Hence, the suit was filed.

(3.) The respondent as defendant contested the suit by filing written statement and denied all the material allegations made in the plaint. His case was that the suit is not maintainable in its present form, barred by limitation and the respondent is not a defaulter, that the plea of bonafide requirement by the appellant is false and malafide and the suit is also bad for defect of parties as his brother Abdul Quddus though a necessary party was not made party in the suit. It was further contended that the notice under Section 106 of the said Act is defective. The whole case of the respondent is that the suit shop originally belonged to Al-haj Sirajul Islam Chowdhury, the father of present appellant under whom the respondent was a tenant since long before, that the respondent and his brother Abdul Quddus a former tenant and subsequently owner by purchase of another shop adjacent to the suit shop in the year 1962 with prior consent of the then landlord removed the partition wall and started joint business in the name and style "Motimohol" and has been continuing their business therein, that the original landlord Al-haj Sirajul Islam Chowdhury and the present respondent executed a joint Ekrarnama on 19-04-1968, that as per terms of the Ekrarnama the respondent took settlement of a piece of land measuring 10' x 3' adjacent to the south of the suit shop from Sylhet Pourashava and amalgamated the same with the suit shop at his own cost and increased the area of the shop and has been continuing the business as a tenant under Al-haj Sirajul Islam Chowdhury, that during liberation war of 1971, the suit shop was destroyed and the respondent and his brother jointly rebuilt the suit shop with three storied foundation after taking necessary permission from Sylhet Pourashava and with full consent of the then landlord and as such there in no necessity of rebuilding of the suit shop, that initially the rent of the suit shop was Tk. 507-and ultimately it was increased Tk. 700/- per month; that the deposit of the respondent in Pub all Bank, Mohila Branch, Sylhet was under written instruction of the owner through her son and constituted attorney Ehtesham Ahmed Chowdhury and rent was paid up to December, 1991, that subsequently on the refusal to receive the rent by the appellant the respondent had to file rent deposit case No. 27 of 1991 and has been depositing rent in the Rent Case; that in 1992 with the consent of the then landlord Haji Sirajul Islam Chowdhury, the respondent and his brother amalgamated both the shops after removing the partition wall and has been running the business and as such question of demolition of partition wall in 1990 does not arise, that the respondent also filed an additional written statement and stated that, the present appellant though claiming that she became owner by way of gift from his father but deed of gift does not attract the suit shop and as such the S.C.C. Suit is liable to be dismissed.