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2017 DIGILAW 92 (CAL)

Pradip Hazra v. Nihar Kanti Roy

2017-01-17

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second appeal is directed against the judgment and decree dated 23rd December, 2015 passed by the Learned Additional District and Sessions Judge, Amta in Title Appeal No. 5 of 2015 affirming the judgment and decree dated 24th April, 2015 passed by the Learned Civil Judge (Junior Division), Amta, Howrah in Title Suit No. 56 of 2011, at the instance of the defendants/appellants. 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 under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not. 3. The plaintiff/respondent filed a suit for eviction against the defendants/appellants by service of notice under Section 106 of the Transfer of Property Act and thereby determining the relationship of landlord and tenant between the parties. The plaintiff’s claim that the father of the defendants was originally the tenant under the plaintiff/ respondent in respect of the suit property. He further claims that on the death of the original tenant, the defendants being the legal representatives of the said original tenant inherited the said tenancy. 4. The instant suit was filed as the defendants failed and neglected to vacate the suit premises even after expiry of the notice period. 5. The defendants contested the said suit by filing written statement denying allegation made out by the plaintiff in the plaint. The parties led evidence in support of their respective claim in the said suit. 6. The learned Trial Judge was pleased to decree the suit in favour of the plaintiff by holding that the defendants are defaulters in payment of rent. Thus, an eviction decree was passed by the learned Trial Judge against the defendants. 7. Challenging the said judgment and decree of the learned Trial Court, the defendants filed an appeal before the learned first appellate court. The learned first appellate court was pleased to affirm the said judgment and decree of the learned Trial Court; however, with different findings. 8. The learned first appellate court held that in a suit for eviction under the Transfer of Property Act, the plaintiff/landlord is not required to prove any ground of eviction. The learned first appellate court was pleased to affirm the said judgment and decree of the learned Trial Court; however, with different findings. 8. The learned first appellate court held that in a suit for eviction under the Transfer of Property Act, the plaintiff/landlord is not required to prove any ground of eviction. It was held by the learned first appellate court that in order to succeed in such a suit, the plaintiff is only required to prove that the service of notice under Section 106 of the Transfer of Property Act upon the tenant, is good, valid, legal and sufficient. 9. The learned first appellate court held that service of such notice upon the defendants has been proved by the plaintiff. On examination of the said notice, the learned first appellate court came to the conclusion that the notice under Section 106 of the Transfer of Property Act which was served upon the defendants, is good, legal, valid and sufficient. 10. As such, the learned first appellate court maintained the decree for eviction passed by the learned Trial Judge. 11. The legality of the said judgment and decree of the learned first appellate court is under challenge in the second appeal at the instance of the defendants/appellants. 12. Mr. Chatterjee, learned advocate appearing for the appellants challenged the legality of the decree passed by the learned first appellate court by submitting that the learned first appellate court while disposing of the said appeal, did not at all consider the defendants’ claim that the original tenancy which was granted in favour of the predecessor-in-interest of the defendants stood, surrendered and after the death of the original tenant, a new relationship of landlord and tenant was established between the plaintiff and the defendant nos. 2 and 3 in respect of the suit property. According to him, the tenancy which was created in favour of the defendant nos. 2 and 3, has not been determined by the plaintiff/ landlord by service of notice under Section 106 of the Transfer of Property Act and as such, the instant suit is not maintainable. 13. Let us now consider the acceptability of such contention of Mr. Chatterjee in the facts of the instant case. 14. Admittedly, the father of the defendants was the tenant in respect of the suit property. He died. 13. Let us now consider the acceptability of such contention of Mr. Chatterjee in the facts of the instant case. 14. Admittedly, the father of the defendants was the tenant in respect of the suit property. He died. It is not the case of the defendants that the father of the defendants surrendered his tenancy during his lifetime and delivered vacant and peaceful possession of his tenancy to the landlord. It is also not the case of the defendants that after the death of the original tenant, his legal representatives surrendered the tenancy which was inherited by them from their father in favour of the plaintiff/landlord and delivered vacant and peaceful possession thereof to the plaintiff/landlord and thereafter, a new relationship of landlord and tenant was created between the plaintiff and the defendant nos. 2 and 3. 15. Unless the earlier tenancy held by the father is extinguished either by express or implied surrender and without the possession thereof being delivered to the landlord, the earlier tenancy cannot come to an end. 16. As such, we cannot accept the submission of Mr. Chatterjee that the earlier tenancy stood extinguished and a new relationship of landlord and tenant was established between the plaintiff and the defendant nos. 2 and 3. 17. We agree with the findings of the learned court below that on the death of the original tenant, his heirs and legal representatives, inherited the said tenancy and the said tenancy was duly determined by service of notice under Section 106 of the Transfer of Property Act upon them. 18. Under such circumstances, we do not find involvement of any substantial question of law in this appeal. We thus, find no merit in this appeal. 19. Accordingly, we decline to admit this appeal. 20. The appeal is, thus, dismissed. 21. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application. 22. The application for stay being CAN No. 3805 of 2016 is thus, deemed to be disposed of.