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1994 DIGILAW 334 (CAL)

TARA SUNDARI GHOSH v. CHHAYARANI DANDAPATH

1994-10-03

N.K.BHATTACHARYYA

body1994
NRIPENDRA KUMAR BHATTACHARYYA, J. ( 1 ) THIS appeal is directed against the judgment and decree dated 13/06/1986 passed in Title Appeal No. 679 of 1985 by the Additional District Judge, 6th Court, Alipore whereby the learned Additional District Judge confirmed the judgment and decree passed by the Munsif, lst Additional Court, Alipore on 31/05/1985 in Title Suit No. 19 of 1983, in part. ( 2 ) THE facts of the case, as could be culled from the record, is that the suit premises originally belong to one Sulekha Pal. The said Sulekha Pal inducted one Akkari Ghosh as tenant in respect of 2 rooms and kitchen along with a joint user of privy in the suit premises at a monthly rental of Rs. 35 /payable according to English. Calendar Month. ( 3 ) THE said Sri Akkari Ghosh died leaving behind his wife, the present appellant, seven sons and several daughters as his heirs and legal representatives. It has further been alleged in the plaint that on request by the sons and daughters of Akkari Ghosh the said Smt. Sulekha Pal accepted the wife of Akkari Ghosh, Tara Sundari Ghosh, as the tenant in respect of the said tenancy. ( 4 ) TAKING advantage of the absence of the said Smt. Sulekha Pal from the suit premises defendant Tara Sundari Ghosh tees passed into another adjacent room of suit premises and forcibly occupied the same. ( 5 ) SMT. Pal repeatedly requested the defendant to vacate the said room but in vain. ( 6 ) THE defendant defaulted in payment of rent in respect of the said tenancy since March, 1974. ( 7 ) THE plaintiff purchased the suit property from the said Smt. Sulekha Pal by a registered deed of purchase dated 29-1-1979 along with the said tenancy of the defendant. ( 8 ) THE plaintiff requested the defendant by a letter dated 21-1-1979 to attorn the tenancy in her favour and to pay rent to her both arrears and current. ( 9 ) THE defendant intentionally failed and neglected to pay either the arrear rent or the current rent and thereafter by a notice dated 25/04/1979 the plaintiff terminated the tenancy of the defendant followed by a suit for ejectment of the defendant from the suit premises being Title Suit No. 19 of 1983 in the Court of the 1st Additional Munsif, Alipore. ( 10 ) THE suit was contested by the defendant by filing a written statement wherein the defendant denied the material allegations in the plaint and also challenged the maintainability of the suit. ( 11 ) THE defence against the delivery of possession of the defendant was struck out under section 17 (3) of the West Bengal Premises Tenancy Act. ( 12 ) THE learned Munsif found the suit maintainable, the notice to quit as legal, valid and sufficient and also found that the notice was duly served upon the tenant defendant and that there was a relationship of landlord and tenant between the plaintiff and the defendant. ( 13 ) ON such findings the learned Munsif decreed the suit in favour of the plaintiff for Khas possession in respect of the 3 rooms, one kitchen and a common user of privy. ( 14 ) THE defendant challenged the judgment and decree before the 6th Court of Additional District Judge, Alipore in Title Appeal No. 679 of 1985. ( 15 ) THE learned Additional District Judge by his judgment dated 13/06/1986 concurred with the findings of the learned Munsif regarding the legality, validity and sufficiency of the notice and also concurred with the findings of the learned Munsif that the notice to quit was duly served upon the defendant and there was a relationship of landlord and tenant between the plaintiff and the defendant. But he found that the plaintiff is entitled to a decree of khas possession regarding the tenanted portion of the defendant and not regarding the adjacent room on which the defendant trespassed upon and forcibly occupied. ( 16 ) HE accordingly allowed the appeal in part and modified the judgment and decree of the learned Munsif so far it relates to the adjoining room whereupon the defendant trespassed and forcibly occupied. ( 17 ) THE defendant has come up in this appeal challenging the said judgment and decree of the learned Additional Judge and the plaintiff also filed a cross objection regarding the finding of the learned Additional District Judge that the plaintiff is not entitled to a decree regarding the adjacent room. ( 18 ) BOTH the appeal and the cross objection were heard together and are disposed of by this judgment. ( 18 ) BOTH the appeal and the cross objection were heard together and are disposed of by this judgment. ( 19 ) FROM the record it appears that the appeal was admitted only on three grounds, namley, ground No. I, XII and XIII. ( 20 ) IN ground No. I the appellant took a plea that the 7 sons and several daughters of deceased Akkari Ghosh are the joint tenants along with the defendant and the suit for eviction against the defendant only excluding the other heirs of Akkari Ghosh is not maintainable. ( 21 ) IN ground No. XII it has been contended that the notice to quit only upon the defendant excluding the sons and daughters of deceased Akkari Ghosh renders the notice illegal, invalid and insuffcient. ( 22 ) IN ground No. XIII the service of notice has been challenged on the ground that the postal endorsement "not claimed" on the registered envelope is not a valid service. ( 23 ) THE learned Senior Advocate Mr. Ashok Kumar Sengupta appearing with Mr. Anilananda Mookherjee, learned Advocate, contended for the appellant that upon the demise of Akkari Ghosh his tenancy devolved upon his heirs, namely, his widow, the present appellant, his 7 sons and several daughters. The suit only against the widow Smt. Tara Sundari excluding the other heirs of deceased Akkari Ghosh renders the suit as bad and illegal on the ground of non-joinder of parties. In support of that contention he relied on a Supreme Court decision in the case of Textile Association (India) Bombay Unit v. Bal Mohan Gopal Kurup ( AIR 1990 SC 2053 ). In the next place he contended that the plaintiff must prove her case and she must prove it to the satisfaction of the Court and she cannot take advantage of the weakness of the defence case. In this connection, he relied upon the cases of J. B. Ross v. C. R. Seriven reported in AIR 1917 Cal 269 (2), Lakshan Chandra Mondal v. Takim Dhali reported in AIR 1924 Cal 558, Jagadish Narain v. Nawab Said Ahmed Khan reported in (1946) 50 Cal WN 477 : (AIR 1946 PC 59 ). Lastly Mr. Sengupta contended that the surrender can be implied by overt act. But the same must be proved by the plaintiff. Lastly Mr. Sengupta contended that the surrender can be implied by overt act. But the same must be proved by the plaintiff. In support of his contention he relied on the case of Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malaga reported in AIR 1976 SC 1565 . ( 24 ) FROM the submission of Mr. Sengupta the only question that emerges is whether the defendant was the sole tenant or a joint tenant under the plaintiff along with the 7 sons and several daughters of deceased Akkari Ghosh. ( 25 ) IN the Textile Association (India) Bombay Unit case ( AIR 1990 SC 2053 ) (supra) one Gopal Kurup was the tenant under the landlord and he died leaving behind his widow two sons and daughters. The suit was brought by the landlord for eviction only against the mother and brother alone and in that suit the respondent No. 1 Bal Mohan Kurup was not a party and ex parte decree was passed against them. The decree was put to execution and possession was recovered by the landlord. By a separate suit the respondent No. 1 challenged the decree on the ground that he was one of the tenants living at the premises at the time of death of his father Gopal Kurup and the ex parte decree obtained by the landlord is not binding on him. In that background the Hon'ble Supreme Court had set aside that ex parte decree and directed that respondent No. 1 should be impleaded as party in the suit. ( 26 ) IN the instant case the sons and daughters of deceased Akkari Ghosh are not coming forward. It is the widow of Akkari Ghosh, the defendant, is raising that plea. From the record of the Court below it appears that the defendant made an affirmed application in the suit on 25/04/1981 under Order 39, Rules 1 and 2 of the Code of Civil Procedure praying for an order of injunction against the plaintiff restraining her from raising wall in front of the window of a tenanted room in the suit property till the disposal of the suit. In that petition the defendant admitted that she is a tenant under the plaintiff. In that petition the defendant admitted that she is a tenant under the plaintiff. Moreover, against the order of striking out of the defence against the delivery of the possession as passed by the learned Munsif by his order No. 52 dated 2-3-1984 the defendant moved this court in revision being Civil Order No. 1777 of 1984. In that revision the defendant also claimed herself to be the tenant in respect of the suit premises under the plaintiff. In my view, in such circumstances, it is no more open for the defendant to contend that she was not the sole tenant under the plaintiff but a joint tenant along with the sons and daughters of deceased Akkari Ghosh. I, accordingly, overrule that contention of Mr. Sengupta. ( 27 ) IN view of my observation that the defendant is the sole tenant under the plaintiff in respect of the suit premises, I am of the view that the suit does not suffer for non-joinder by parties. ( 28 ) BOTH the courts below found that the notice to quit was duly served upon the defendant. That is a concurrent finding of fact. In 2nd appeal the said concurrent finding of fact cannot be interfered with. ( 29 ) MR. Saktinath Mookherjee, learned Senior Advocate appearing with Mr. Bhaskar Ghosh, the learned Advocate, contended for the respondent that the learned Additional District Judge modified the judgment and decree of the learned Munsif regarding the adjacent room on the ground that the Additional Court fee has not been paid and there was no prayer in the plaint for eviction of the defendant from that room. Mr. Mukherjee, contended that such a prayer was made in the plaint and that his client is ready and willing to pay Additional Court-fee for the same. He further contended that under Order 2, Rule 3 of the Code of Civil Procedure joinder of causes of action is permissible. ( 30 ) FROM a reading of the plaint it appears that in prayer (a) the plaintiff prayed for decree for ejectment of the defendant and her family members of the suit property as described in Schedule 'a'. He further contended that under Order 2, Rule 3 of the Code of Civil Procedure joinder of causes of action is permissible. ( 30 ) FROM a reading of the plaint it appears that in prayer (a) the plaintiff prayed for decree for ejectment of the defendant and her family members of the suit property as described in Schedule 'a'. Schedule 'a' reads as follows:-"all that piece and parcel of two rooms / three rooms with kitchen, privy (joint) situated at Block 'o' 52 / A known as 52 / 1 Fatepur lst Lane, P. S. Matiabruz, District 24 Parganas also known as Fatepur 2nd lane". So the finding of the learned Additional Judge that no prayer was made in the plaint for recovery of possession of the adjacent room after eviction of the defendant, therefore, is not correct. Furthermore, joinder of causes of action is permissible under Order 2, Rule 3 of the Code of Civil Procedure. Instead of rejecting the prayer the Additional District Judge could direct the plaintiff to pay the Court-fee for the recovery of the said room. ( 31 ) IN view of my discussion above I find no merit in the appeal and the appeal is accordingly dismissed. ( 32 ) THE cross objection is allowed. The plaintiff is directed to pay the necessary court, fee as would be assessed by the trial Court for her prayer for recovery of the adjacent room after eviction of the defendant therefrom. There will be no order as to costs. Order accordingly.