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2008 DIGILAW 564 (CAL)

Sunil Kumar Ghosh v. Madan Ghosh

2008-05-16

KALIDAS MUKHERJEE

body2008
Judgment : KALIDAS MUKHERJEE, J. (1). THIS appeal is directed against the judgment and decree passed by learned judge, VIIIth Bench, City Civil Court, Calcutta in Title Appeal No. 11 of 2004 affirming the judgment and decree passed by learned Judge, 4th bench of Presidency Small Causes Court, Calcutta in Ejectment Suit No. 66 of 2000. (2). THE case of the plaintiff/appellant, in short, is that he purchased the suit premises by registered deed dated 23. 02. 1996 from Smt. Krishna Mallick. The defendant Nos. 1 and 2 were the monthly tenants under Smt. Krishna mallick before the purchase of the suit premises by the plaintiff at a monthly rental of Rs. 140/-according to English calendar month. Smt. Krishna Mallick sent a letter attornment to all the tenants of the premises as well as to the defendants by letter dated 23. 02. 1996 thereby intimating the fact of sale of the suit premises to the plaintiff and requesting them to pay the monthly rent in respect of the suit premises to the plaintiff. But they did not pay any rent to the plaintiff since the date of his purchase in compliance with the said letter of attornment. The plaintiff thereafter determined the tenancy of the defendants by notice to quit dated 03. 01. 1997. The defendants received the notice on signing the A/d Cards. The defendants did not vacate the suit premises. The defendants were the habitual defaulters in payment of their monthly rents. Moreover, the defendants have made substantial, unauthorized and illegal construction both within and outside the suit premises i.e. in their tenanted portion. The defendants with the help of the miscreants and antisocials have been creating various nuisance, annoyance and disturbances in the suit premises. The defendants have illegally installed heavy machineries in the suit premises converting the suit premises to commercial and business purpose. The suit premises were let out to the defendants solely for residential purpose. The defendants have violated and acted in contravention of the provisions of clause (m), (o), (p) of Section 108 of the transfer of Property Act. The plaintiff reasonably required the suit premises for his own use and occupation. For the said reasons the plaintiff instituted the suit before the learned Court below for ejectment. (3). THE defendant Nos. 1 and 2/respondents contested the suit contending, inter alia, that the suit was bad for non-joinder of parties. The plaintiff reasonably required the suit premises for his own use and occupation. For the said reasons the plaintiff instituted the suit before the learned Court below for ejectment. (3). THE defendant Nos. 1 and 2/respondents contested the suit contending, inter alia, that the suit was bad for non-joinder of parties. Originally the defendants were monthly tenants under smt. Krishna Mullick at a rental of Rs. 120/-per month and subsequently by agreement dated 04. 6. 1981 the rental of the suit premises was enhanced to Rs. 130/- per month. The plaintiff refused to accept the rent of the suit premises and, as such, the same was duly deposited with the office of Rent Controller, Calcutta regularly. The notice allegedly served upon the defendants was bad in law. The other allegations raised in the plaint were denied by the defendants. (4). THE defendant Nos. 3, 7 who were added under Order 1 Rule 10 C. P. C. filed a separate written statement contending, inter alia, that the alleged letter of surrender of tenancy by defendant Nos. 3 ? 7 was forged, illegal, invalid and mala fide. The defendants never surrendered their tenancy. Since, no notice of ejectment was served/addressed to the defendant Nos. 3?7, the suit was bad for non-service of notice upon them. (5). THE learned Trial Court on perusal of the evidence on record dismissed the suit holding that all the defendants were the joint tenants in respect of the suit premises upon the death of Nilmoni Ghosh (since deceased), the original tenant. The learned Trial Court further held that as the suit premises were jointly occupied by all the defendants, the suit for eviction without service of notice upon the defendant Nos. 3 ? 7 was not maintainable as the decree could not be granted in respect of the defendant Nos. 1 and 2 only. The plaintiff being aggrieved by the said judgment and decree preferred appeal and the learned First Appellate court affirming the judgment and decree passed by the learned Trial Court dismissed the appeal. It was held by the learned First Appellate Court that upon the death of contractual tenant Nilmoni Ghosh, since deceased, the defendants inherited the suit premises from him and became the joint tenants in respect of the suit premises. It was held by the learned First Appellate Court that upon the death of contractual tenant Nilmoni Ghosh, since deceased, the defendants inherited the suit premises from him and became the joint tenants in respect of the suit premises. The learned First Appellate Court has further held that P. W. 1 i.e. the plaintiff himself admitted in cross-examination that the defendant Nos. 3, 7 are residing in the suit premises and are the legal heirs of Nilmoni Ghosh. The learned First Appellate court held that the notice to quit was insufficient and bad in law. Being aggrieved by the judgment and decree passed by the learned First Appellate court, the plaintiff has preferred the instant appeal. (6). IN this appeal, the following substantial question of law was formulated as hereunder: "even assuming for the sake of argument that the added defendants did not surrender their tenancy right on the death of their predecessor, whether notice upon two defendants was sufficient for maintaining a suit for eviction under the provision of Section 13 of the West bengal Premises Tenancy Act." (7). THE learned Advocate appearing on behalf of the appellant submits that only the defendant Nos. 1 and 2 have been residing in the suit premises and the other defendants are not in actual occupation of the same. The learned counsel further submits that the defendants are depositing rent with the rent Controller and in the affidavit submitted there, it has been mentioned that the defendant Nos. 1 and 2 only are the tenants in the suit premises. It is contended that after the death of the contractual tenant, the heirs who are in actual possession of the suit premises can claim tenancy and in respect of the rest of the heirs they cannot claim to be the tenants, unless, it is proved that they exercised their option with regard to such right of tenancy. It is submitted that in absence of the exercise of the option, the rest of the heirs cannot claim tenancy in the suit premises. It is contended that the defendant Nos. 3?7 are not in actual possession and, as such, the notice addressed to defendant Nos. 1 and 2 only was legal, valid and sufficient. The learned Counsel has referred to and cited decisions reported in 2008 (1) CLJ Cal 610 [smt. Renuka Debnath and Ors. Vs. It is contended that the defendant Nos. 3?7 are not in actual possession and, as such, the notice addressed to defendant Nos. 1 and 2 only was legal, valid and sufficient. The learned Counsel has referred to and cited decisions reported in 2008 (1) CLJ Cal 610 [smt. Renuka Debnath and Ors. Vs. Narayan Chandra Mallick]; 1998 (1) CHN 521 [amal Krishna Aditya vs. Ganesh Chandra Das]; AIR 2007 NOC 148 (A. P.) [m/s. Network Inc. , a Partnership Firm Rep. By Managing Partner Vs. K. R. Mohan Reddy] and AIR 1997 SC 3243 [jaipur Development Authority Vs. Smt. Kailashwati Devi]. It is submitted that even if it is found that the rest of the heirs inherited the right of tenancy, in that case also the doctrine of representation will come into play and it is evident from the evidence on record that the defendant Nos. 1 and 2 only deposited the rent with the Rent controller on behalf of the other defendants. It is submitted that the learned Court below was not justified in dismissing the suit for non-service of notice upon the defendant Nos. 3?7 and the suit should be sent back on remand for deciding the issues afresh after recording further evidence. (8). THE learned Counsel appearing on behalf of the respondent/defendant submits that on the death of the contractual tenant, all the heirs have become the tenants in common and the notice ought to have been addressed to all the defendants, in as much as, all the heirs got separate right in the tenancy. It is submitted that for non-service of notice upon the defendant Nos. 3, 7, the suit was not maintainable and there is no ground to interfere with the impugned judgment. The learned Counsel has referred to and submitted the decisions reported in 1995 SC 515 [kumar jagdish Chandra Sinha and others Vs. Mrs. Eileen K. Patricia drozarie]; AIR 1990 SC 2053 [textile Association (India) Bombay unit Vs. Balmohan Gopal Kurup and another]; AIR 2008 579 [ K. R. Mohan Reddy Vs. M/s. Net Work Inc. Rep. Tr. M. D.]; AIR 2008 SC 582 [state of M. P. Vs. Babulal] and 2006 (1) CHN 513 [jaharlal Saha and ors. Vs. Pradip Saha and Ors. ] (9). Balmohan Gopal Kurup and another]; AIR 2008 579 [ K. R. Mohan Reddy Vs. M/s. Net Work Inc. Rep. Tr. M. D.]; AIR 2008 SC 582 [state of M. P. Vs. Babulal] and 2006 (1) CHN 513 [jaharlal Saha and ors. Vs. Pradip Saha and Ors. ] (9). FROM the averment made in paragraph 4 of the plaint and the evidence on record it is clear that the notice of ejectment was served upon the defendant Nos. 1 and 2 only. It was further contended by the plaintiff in the learned Court below that the rest of the defendants surrendered their tenancy. The alleged letter surrendering the tenancy by the defendant Nos. 3?7 was not proved before the learned Trial Court and the same was not admitted in evidence. The alleged surrender of tenancy by the rest of the defendants was disbelieved by the learned Courts below. (10). IT is also in evidence of P. W. 1 that the defendant Nos. 3?7 are residing in the suit property. Now the question arises as to whether the suit was maintainable or not due to non-service of notice of ejectment upon defendant Nos. 3?7. It is in evidence that Nilmoni Ghosh was the original tenant and upon his death, the defendants being the heirs are in occupation of the suit premises. The suit was initially instituted against the defendant Nos. 1 and 2 only. But subsequently, the defendant Nos. 3 ? 7 prayed for adding them as defendants under Order 1 Rule 10 of the C. P. C. and the learned Trial Court vide order No. 64 dated 12. 6. 2002 allowed the said prayer. The plaintiff did not challenge the said order passed by the learned Trial Court. (11). THE learned Counsel of the appellant relied on the decision reported in 1998 (1) CHN 521 (Supra) wherein the defendant/appellant alone had become the tenant under the plaintiff/respondent after the death of the father and other brothers had relinquished their right as tenants and, under such circumstances, the doctrine of representation was held to be applicable. But in the instant case, the alleged surrender of tenancy by the defendant Nos. 3, 7 was not proved and, therefore, the doctrine of representation, as urged by the learned Counsel of the plaintiff/appellant would not apply. (12). But in the instant case, the alleged surrender of tenancy by the defendant Nos. 3, 7 was not proved and, therefore, the doctrine of representation, as urged by the learned Counsel of the plaintiff/appellant would not apply. (12). THE learned Counsel of the plaintiff/appellant has relied on another decision reported in 2008 (1) CLJ (Cal) 610 (Supra) wherein the suit was instituted as the lease expired due to efflux of time and the notice was served upon the defendant/appellant No. 1 being the widow under Section 106 of the T. P. Act. It was observed by Their Lordships that after the expiry of lease it became tenancy at sufferance and, under such circumstances, the notice under Section 106 of the T. P. Act served upon one of the sons of the original tenant who paid rent and acted on behalf of all the heirs of the original tenant, cannot be said to be insufficient. But the facts of the instant case are different and, as such, the ratio of the aforesaid decision will not be applicable in the circumstances of the instant case. (13). LEARNED Counsel of the defendant/respondent has referred to and cited the decision reported in AIR 1995 SC 515 (Supra) paragraphs 10 and 15. The observations of the Honble Apex court made in paragraphs 10 and 15 are quoted hereunder:-"10. Undisputably a contractual tenant has an estate or interest in the subject-matter of the tenancy and heritability is an incidence of such tenancy. In the absence of any provision in the Act to the contrary, all the heirs of such a tenant would therefore, on his death, step in his shoes?" "15. For the foregoing discussion and in view of the admitted fact that Mrs. Menan was a contractual tenant at the time of her death, it must therefore be held that the respondent inherited the tenancy as her heir. Consequently, the question as to whether she was ordinarily residing with her mother at the time of her death becomes redundant??" In the case of Textile Association (India) Bombay unit reported in AIR 1990 sc 2053 (Supra), the observation of the Honble Apex Court made in paragraph 4 is quoted hereunder:-"4. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. It is not sufficient as the courts below have said that the decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the respondent. The respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. It seems to us, therefore, the ex parte decree for eviction should be set aside and the petitioner should be impleaded as a party to that suit and it should proceed on merits. " (14). THE learned Counsel for the defendant/respondent relied on the decision reported in 2006 (1) CHN 514 (Supra) wherein the ratio of the decision in case of Amal Krishna Aditya Vs. Ganesh Chandra Das was not followed and the doctrine of representation was held to be not applicable. The observations of the Honble Court in the aforesaid decision reported in 2006 (1) CHN 514 made in paragraphs 14, 17, 19 and 27 are quoted below:- "14. Therefore, the decision in the case of Kanji Manji (supra), did not lay down any proposition of law that on the death of the contractual tenant his heirs inherit the tenancy as a joint tenant; on the other hand, the Supreme court in the case of Boddu Venkatakrishna Rao and Ors. Vs. Boddu Satyavathi and Ors., reported in AIR 1968 SC751, (a Bench consists of three Judges) has taken the view that on the death of a contractual tenant who is a Hindu, his heirs inherit as a tenant-in-common. " "17. We are, therefore, unable to follow the decision of the Division Bench of this Court in the case of Amal krishna Aditya (supra), so far it sought to lay down as a proposition of law that the doctrine of representation will save a suit filed by a landlord to evict the heirs of the deceased contractual tenant even if some of the heirs are not made parties. " "19. " "19. In our opinion, the aforesaid view expressed by the said Bench is in direct contradiction to the decision of textile Association (supra), where the plea of representation put forward by the learned Counsel appearing for the landlord was turned down???. . " "27. In this case, notice is not addressed to all the heirs, but only against the defendants, and, as such, the notice of threat of suit in terms of Section 13 (6) of the Westbengal Premises Tenancy Act must be held to be invalid on that ground also. " (15). RELYING on the decision reported in 2006 (1) CHN 514, I find that the doctrine of representation is not applicable in the facts of the instant case and the notice served upon defendant Nos. 1 and 2 only excluding the defendant Nos. 3, 7 is bad in law. The learned Courts below rightly decided the suit on this point. (16). THE learned Counsel appearing on behalf of the plaintiff/appellant submits that even if, after the death of the contractual tenant, the heirs are found to have inherited the right of tenancy, in that case also it is to be proved that the heirs exercised option with regard to their right of tenancy. It is contended that the defendant Nos. 1 and 2 only deposited rent with the Rent controller describing themselves as the tenants in the suit property and there is no mention of the names of other defendants. It is further contended that the other defendants i. e. defendant Nos. 3?7 did not exercise their option with regard to their right of tenancy in the suit premises and, as such, there was no necessity to send notice to defendant nos. 3?7. I am unable to accept such contention of the learned Counsel appearing on behalf of the plaintiff/appellant, in as much as, the P. W. 1 has admitted in his evidence that the defendant Nos. 3?7 have been residing in the suit premises. Moreover, these defendants after being added as party in the suit under Order 1 Rule 10 C. P. C. , contested the suit by filing written statement contending, inter alia, that they are residing in the suit premises and that the suit was not maintainable for non-service of notice upon them. (17). THE learned Counsel appearing on behalf of the plaintiff/appellant submits that in order to prove that the defendant Nos. (17). THE learned Counsel appearing on behalf of the plaintiff/appellant submits that in order to prove that the defendant Nos. 1 and 2 described themselves as the tenants in the suit premises before the Rent Controller while depositing rent, an opportunity should be given to the plaintiff/appellant to adduce further evidence before the learned Trial Court on this point. The learned Counsel for the plaintiff/appellant has referred to and cited the decision reported in AIR 1997 SC 3243 . The learned Counsel appearing on behalf of the defendant/respondent has submitted that the fact of depositing rent with the Rent Controller was very much known to the appellant and being aware of the said fact beforehand, the plaintiff did not adduce any evidence on that point and that no opportunity at this belated stage should be given to him to adduce further evidence and the application under Order 41 Rule 27 C. P. C. should be rejected. The learned counsel for the defendant/respondent has referred to and cited decision reported in AIR 2008 SC 579 on this point. Since, the P. W. 1 has admitted in cross-examination that defendant Nos. 3?7 are residing in the suit premises and in view of the fact that those defendants were allowed to be added as party under Order 1 Rule 10 of the C. P. C. , I think that there is no ground to allow the application under Order 41 Rule 10 of the C. P. C. for adducing further evidence. It is also not necessary for arriving at a just decision in the matter. (18). IN view of the aforesaid discussion, I find that there is no ground to interfere with the judgment and decree under appeal. The impugned judgment and decree are affirmed and the appeal is dismissed. The CAN application No. 5059 of 2007 also stands dismissed. (19). THERE will be no order as to costs. (20). LET a copy of this judgment along with the L. C. R. be sent to the learned court below immediately.