Back
High Court Of Calcutta
M. N. RAO
BENOY BHUSAN DASGUPTA - Appellant
Versus
SABITRI BANERJEE - Respondent
Title Suit 122 Of 1968
Decided On : 01/17/1977
TRANSFER OF PROPERTY ACT - SECTION 108 (M), (O) - EJECTMENT - DAMAGES - SUBSEQUENT SUIT - MAINTAINABILITY - CAUSE OF ACTION - DAMAGES REPAIRED AFTER DECREE IN EARLIER SUIT - SUBSISTING CAUSE OF ACTION - ORDER 2 RULE 2 OF THE CODE OF CIVIL PROCEDURE - BAR OF SUBSEQUENT SUIT - INTERPRETATION.
Fact of the Case:
The plaintiff-respondent, being the owner of the premises in suit, brought a suit for recovery of khas possession by eviction and for mesne profits and compensation for damages caused to the premises. The defendant-appellant, a tenant in the premises, had allegedly contravened the provisions of clauses (m) and (o) of section 108 of the Transfer of Property Act by breaking open a portion of the wall, making a hole in the privy, and breaking other portions of the rooms of the tenancy. The defendant-appellant denied the material allegations and contended that he had made changes to the tenancy with the knowledge and consent of the plaintiff-respondent's husband. The defendant-appellant also contended that the subsequent suit for ejectment on the ground of causing damages was not maintainable since the damages had been repaired after the decree in the previous suit.
Finding of the Court:
The trial court held that the defendant-appellant was guilty of causing damages to the tenancy and decreed the suit, holding that the notice to quit was due, valid, and proper. The appellate court upheld the trial court's decision, rejecting the defendant-appellant's appeal and the plaintiff-respondent's cross-objection on the issue of damages.
Issues: 1. Whether the subsequent suit was maintainable in light of the previous suit and the repairs made to the damages? 2. Whether the notice to quit was valid and sufficient? 3. Whether the plaintiff-respondent was entitled to recover khas possession of the premises in suit by evicting the defendant-appellant? 4. Whether the plaintiff-respondent was entitled to compensation for the damages caused to the rooms in the premises in suit?
Ratio Decidendi: 1. The subsequent suit was not maintainable because the cause of action in the subsequent suit was not distinct from that in the earlier suit. The damages that formed the basis of the subsequent suit had been repaired and rectified after the decree in the earlier suit, and therefore, the damage could not be considered as subsisting at the time of the subsequent suit. 2. The notice to quit was valid and sufficient, as found by the courts below.
Final Decision: The appeal was allowed, and the judgments and decrees of the courts below were set aside. There was no order for costs.
( 1 ) THIS appeal from appellate decree is directed against the judgment and decree dated August 30, 1970, made in Title Appeal No. 337 of 1970 by Shri S. K. Dutta, Additional District Judge, 1st Court, Alipore, affirming thereby the judgment and decree dated January 30, 1970, made in Title Suit No. 234 of 1968, by Shri D. K. Panda, Munsif, 2nd Court, Alipore.
( 2 ) THE plaintiff respondent, being the owner of the premises in suit brought the Tile Suit in question against the defendant appellant for recovery of Khas possession by eviction and for mesne profits and also for compensation for damages caused to the premises. It was alleged that the defendant appellant was a tenant in respect of two bedrooms, one privy and one verandah at a monthly rent of Rs. 35/-, payable according to English calendar month. It was contended that the tenant defendant broke open a portion of the wall in between the bed rooms of his tenancy, made a hole in the wall of the privy and broke other portions of the rooms of the tenancy and thereby contravened the provisions of clauses (m) and (o) of section 108 of the Transfer of Property Act and as such became liable for eviction. The tenancy was alleged to have been duly terminated by necessary service of notice to quit.
( 3 ) THE tenant defendant, apart from denying the material allegations, contended that he was a tenant in the premises in question from the predecessor-in-interest of the plaintiff respondent at a rent of Rs. 24/- per month, payable according to English calendar month and at first his tenancy considered of 2 rooms and a privy which was used by him jointly with other tenants. He alleged that after her purchase there was some rearrangement of the tenancy at the request of the plaintiff respondent and the tenant defendant left possession of one of the rooms in exchange of another room of similar size. He has further alleged that the room so surrendered by him was converted into two privies and he was given exclusive possession of one of the said two privies. Thus, the tenant defendant has contended that has contended that the extent of his tenancy was thus changed to two rooms, one privy and a varandah and the rent of the same was correspondingly increased to Rs. 35/- from Rs. 24/- per month. The tenant defendant has stated that since there was neither any inter communicating door between he two rooms of the tenancy as subsequently created nor there was any ventilator in the newly constructed privy, for which he was facing great trouble an difficulties, he with the knowledge and consent of the plaintiff-respondent's husband and/or with intimation to him got an opening in the common wall of the two rooms and so also a ventilator in the privy. On such happening, the plaintiff respondent filed Title Suit No. 122 of 1968 for permanent injunction restraining him form breaking or demolishing any portion of the structure within his tenancy. A prayer for mandatory order of injunction directing him to restore the walls of the rooms to their former position was also made. On admissions made by him in the written statement, the said Title Suit was decreed on contest and thereafter the tenant defendant has filed up the portion he broke open for the purposes as aforesaid. Since the damages, which were caused, were duly repaired, the tenant defendant contended that the subsequent suit for ejectment on the ground of causing damages was not maintainable. In that view of the matter it was also contended by him that the plaintiff-respondent was not entitled to any damage at all, apart from contending further that the present suit in view of the earlier determination was barred.
( 4 ) ON the pleadings as aforesaid the parties went in trial on the following issues:1. HAS the plaintiff any cause of action? 2. Has the deft, illegally demolished the portion f the suit premises as mentioned in the plaint without the knowledge and consent of plff. Causing material deterioration of the suit premi
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
