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2016 DIGILAW 759 (CAL)

Chandan Samanta v. Bijay Kumar Jana

2016-09-28

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This Second Appeal is directed against the judgment and decree dated 7th June, 2016 passed by the learned Additional District Judge, First Track - I, Tamluk, affirming the judgment and decree passed by the learned Civil Judge, Junior Division, 2nd Court at Tamluk, on 30th May, 2014 in Title Suit No. 33 of 2005 at the instance of the defendant/ appellant. 2. Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 3. Here is the case where we find that plaintiffs filed a suit for eviction against the defendant/appellant by terminating the relationship of landlord and tenant between the parties by service of notice under Section 106 of the Transfer of Property Act. 4. The maintainability of the suit based on the cause of action arising out of the service of the said notice under Section 106 of the Transfer of Property Act was challenged by the defendant. 5. It is contended by the defendant that prior to the service of the said notice, another notice under Section 106 of the Transfer of Property Act was served upon the defendant. It was contended by the defendant that since the relationship of landlord and tenant between the parties was terminated by service of earlier notice, the plaintiffs cannot maintain the present suit for eviction on the basis of the second notice under Section 106 of the Transfer of Property Act without canceling the earlier notice. 6. Both the courts below held that the suit is maintainable on the basis of cause of action, which arose from service of the second notice under Section 106 of the Transfer of Property Act. Both the courts below held that the reason for which the first notice was not acted upon by the plaintiffs has been sufficiently explained by the plaintiffs in the suit. As a matter of fact, the first notice under Section 106 of the Transfer of Property Act was not served by all the landlords. Even the relationship of landlord and tenant between the parties was not determined by the first notice. The reason for not acting upon the first notice has also been mentioned by the plaintiffs in the second notice. Even the relationship of landlord and tenant between the parties was not determined by the first notice. The reason for not acting upon the first notice has also been mentioned by the plaintiffs in the second notice. It was stated therein that after service of the first notice under Section 106 of the Transfer of Property Act upon the defendant, the parties negotiated for settlement. But, since the defendant subsequently did not act upon the settlement arrived at between the parties, the second notice was served upon the defendant and thereby the relationship of landlord and tenant between the parties was determined. Both the courts below found that under such circumstances, the suit is very much maintainable, as the first notice was not served in consonance with the provision contained in Section 106 of the Transfer of Property Act. 7. After hearing Mr. Chakraborty, learned advocate, appearing for the appellant and after considering the materials on record, including the judgment and decree of both the courts below, we are of the view that the courts below did not commit any illegality in holding that the suit is maintainable on the basis of the cause of action which arose from the service of second notice under Section 106 of the Transfer of Property Act, we form this view as we find that the first notice under Section 106 of the Transfer of Property Act was not served by all the plaintiffs, and the relationship of landlord and tenant between the parties was not determined by the said notice. 8. Because of the inherent defect in the first notice, we agree with the learned courts below that the first notice cannot be regarded as a proper legal and valid notice under Section 106 of the Transfer of Property Act. 9. For the reasons as stated above, we decline to admit this appeal as we find that no substantial question of law is involved in this appeal. 10. The appeal and the application filed in connection with this appeal are, thus, dismissed.