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2000 DIGILAW 92 (CAL)

Avarani Mukherjee v. Jagadish Roy Choudhury

2000-02-24

Bhaskar Bhattacharya

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Judgment Bhaskar Bhattacharya, J.: This second appeal is at the instance of defendants in a suit for eviction and is directed against the judgment and decree dated February 15, 1992 passed by the learned Assistant District Judge, 1st Additional Court, Burdwan in Title Appeal No. 155 of 1991 thereby affirming those dated March 20, 1991 passed by the learned Munsif, 1st Court, Burdwan in Title Suit No. 59 of 1982. 2. The respondent herein filed the aforesaid suit for eviction of one Satyanarayan Mukherjee, since deceased, the predecessor-in-interest of the present appellants after service of a notice under section 106 of the Transfer of Property Act ("Act"). There is no dispute that the West Bengal Premises Tenancy Act has no application to the area where the suit property is situated. During the pendency of the suit, the original defendant having died, the present appellants were substituted in his place. 3. The aforesaid suit was contested by the present appellants by filing written statement thereby disputing the legality, validity and service of the ejectment notice under section 106 of the Act. 4. The learned trial Judge on consideration of the materials on record held that the notice to quit under section 106 of the Act was legal, valid and sufficient and the same was duly served. 5. Being dissatisfied, the present appellants preferred an appeal being Title Appeal No. 155 of 1991 and by the judgment and decree impugned herein, the learned first appellate court below has affirmed those passed by the learned Trial Judge. 6. Being dissatisfied, the substituted defendants have preferred the instant second appeal. 7. At the time of hearing of the instant appeal under Order 41 Rule 11 of the Code of Civil Procedure, the Division Bench admitting such appeal did not formulate any substantial questions of law as required under section 100 of the Code of Civil Procedure. However, after hearing Mr. Bagchi in support of this appeal and Mr. Roy chowdhury appearing on behalf of the respondent, I formulated the following substantial question of law for disposal in this second appeal: Whether the learned courts below erred in law in passing a decree of eviction without granting any relief under section 114 of the Transfer of Property Act in favour of the defendants? 8. Mr. Roy chowdhury appearing on behalf of the respondent, I formulated the following substantial question of law for disposal in this second appeal: Whether the learned courts below erred in law in passing a decree of eviction without granting any relief under section 114 of the Transfer of Property Act in favour of the defendants? 8. Mr. Bagchi, the learned advocate appearing on behalf of the appellants contends that in the plaint, the respondent having alleged default in payment of rent, the suit should be treated to be a suit for eviction in substance on the ground of forfeiture due to breach of contract viz. default in payment of rent and as such without giving any relief under section 114 of the Act, the learned courts below could not straight-way pass a decree for eviction. 9. After going through the plaint, it appears that although in the plaint, allegation of default in payment during substance of the tenancy was made, notwithstanding such default, service of a notice under section 106 of the Act was pleaded and the suit was filed for eviction on the basis of determination of lease in view of service of such notice. 10. Therefore, it cannot be contended that the suit was filed on the ground provided in section 111 (g) of the Act. Moreover, in this case, the landlord has not even given any notice under section 114(A) of the Act asking the original defendant to remedy the breach. Under the aforesaid circumstances. I do not find any substance in the contention of Mr. Bagchi that the suit was filed on the ground of determination of a lease by forfeiture. As indicated above, the landlord/respondent by giving a notice under section 106 of the Act filed the suit claiming determination of the lease by virtue of section 111 (h) of the Act. 11. Therefore, no question of granting any relief against forfeiture for non-payment of rent arises. 12. Having failed to convince this court on the aforesaid question, Mr. Bagchi sought for a leave to argue on the question of service of notice. 11. Therefore, no question of granting any relief against forfeiture for non-payment of rent arises. 12. Having failed to convince this court on the aforesaid question, Mr. Bagchi sought for a leave to argue on the question of service of notice. Both the learned courts below on consideration of the materials on record and after believing the evidence of the postal peon having found service of notice upon the original defendant, such finding should be held to be "a concurrent findings of fact based on evidence" and as such within the narrow limit of section 100 of the Code of Civil Procedure, there is no scope of re-appreciation of evidence. Thus, I do not find any substance in the aforesaid additional contention of Mr. Bagchi. 13. This second appeal is therefore without any substance and is dismissed. 14. In the facts and circumstances there will be however no order as to costs. N.M. Second Appeal dismissed.