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1983 Supreme(Cal) 36
High Court Of Calcutta
B. C. Chakrabarti
NIKHIL CHANDRA SEN - Appellant
Versus
AJIT CHANDRA MULLICK - Respondent
Second Appeal 630 Of 1978
Decided On : 02/16/1983
PRABIR SAMANTA, PRASANT BANDOPADHYAY, SAMAR DUTT, Sudhis Das Gupta
A notice to quit under Section 106 of the Transfer of Property Act is not essential for bringing to an end the relationship between the landlord and tenant where the Rent Act provides fulfilment of certain conditions before the landlord can ask for eviction of the tenant.
Headnote:
LANDLORD AND TENANT - NOTICE TO QUIT - WAIVER - PREVIOUS NOTICE UNDER SECTION 106 OF T. P. ACT NOT WAIVED - SUBSEQUENT NOTICE UNDER SECTION 111(H) OF T. P. ACT - VALID AND EFFECTIVE - SUIT FOR EVICTION MAINTAINABLE.
Fact of the Case:
Plaintiffs filed a suit for eviction of the defendant from the suit premises on the ground of reasonable requirement for purposes of own use and occupation. The defendant contested the suit, claiming that the plaintiffs had previously served a notice to quit in 1957 which was not waived, and that the present suit founded on the second notice was not maintainable. The trial court and the lower appellate court found in favor of the plaintiffs and decreed the suit for eviction.
Finding of the Court:
The court found that the ground floor of the premises was in the occupation of a tenant, A. S. Chatterjee, from 1963, and that the plaintiffs required the suit premises for their own use and occupation. The court also found that the earlier notice to quit issued in 1957 was waived by the conduct of the parties, and that the subsequent notice under Section 111(h) of the Transfer of Property Act was valid and effective.
Issues: 1. Whether the ground floor of the premises was in the occupation of a tenant, A. S. Chatterjee, from 1963? 2. Whether the plaintiffs required the suit premises for their own use and occupation? 3. Whether the earlier notice to quit issued in 1957 was waived by the conduct of the parties? 4. Whether the subsequent notice under Section 111(h) of the Transfer of Property Act was valid and effective?
Ratio Decidendi: 1. The court relied on the oral testimony of A. S. Chatterjee and the rent counterfoils produced by the plaintiffs to find that A. S. Chatterjee was the tenant of the ground floor since 1963. 2. The court found that the plaintiffs had four members in their family and were living in a two-bedroom apartment, while the defendant was living alone in a four-bedroom apartment. The court held that the plaintiffs reasonably required the suit premises for their own use and occupation. 3. The court found that the defendant continued in possession after the expiry of the earlier notice, deposited rent with the Rent Controller, and withdrew the same by the plaintiffs, indicating an intention to treat the tenancy as subsisting. The court held that the earlier notice was waived by implication and by conduct of the parties. 4. The court held that the subsequent notice under Section 111(h) of the Transfer of Property Act was valid and effective, as the earlier notice had been waived.
Final Decision: The appeal was dismissed, and the decree of the lower appellate court was upheld.
( 1 ) THIS is an appeal by the defendant from the decision of the learned Additional District Judge, 8th Court, Alipore affirming the judgment and decree passed by the Munsif. Second Additional Court, Alipore in Title Suit No. 38 of 1973 of his Court.
( 2 ) THE respondent (hereinafter called the plaintiffs) instituted the suit for eviction of the appellant (hereinafter called the defendant) from the suit premises which comprises the entire first floor of Premises No. 9b Rani Sankari Lane, consisting of four bed-rooms, one kitchen and other appurtenances. The plaintiffs' case in short is as follows :--The premises in suit belongs to the four plaintiffs of whom plaintiff No. 2 is married and has two children besides his wife. They have no other house. The other plaintiffs are still unmarried and are unable to marry for want of adequate accommodation available to them in the suit house. They are in occupation of the second floor of the house, the ground floor being in the possession of one A. S. Chatterjee and the first floor (suit premises) being in the occupation of the defendant. The plaintiffs other than plaintiff No. 2 have attained marriagable age but due to paucity of accommodation available to them in the present residence on the second floor of the premises are unable to do so. It is also the case of the plaintiffs that plaintiff No. 1 is forced to live and carry on his business at 22b, Southern Avenue for want of accommodation. The defendant is a monthly tenant of the first floor at a rental of Rs. 50/- payable according to English calendar month. The defendant's tenancy was determined by a notice expiring 'with the month of Oct. , 1970. The notice further indicated that in the event of the failure of the defendant to quit and vacate, the plaintiffs would he obliged to sue him for eviction. The defendant not having vacated, the plaintiffs instituted the suit for eviction of the defendant on the ground of reasonable requirement for purposes of own use and occupation.
( 3 ) THE defendant contested the suit by filing a written statement. His case briefly is as follows Initially the defendant's father was the tenant in respect of the suit premises. Plaintiff No. 1 never resided in this house and has been residing elsewhere from long before the tenancy in favour of the defendant's father. The ground floor of the house was vacated by the previous tenant on Sept 15, 1971 and Anadi Saran Chatterjee has been set up by the plaintiffs in order to make out a case of reasonable requirement. The ground floor was previously in the occupation of South Indian tenants and fell vacant from time to time. The plaintiffs could have occupied the same if they were in need of more accommodation than what is available to them. The story of reasonable requirement for own use and occupation is untrue and the notice is otherwise bad in law.
( 4 ) THE suit was once before dismissed on the ground of limitation. It was found that the plaintiffs had previously served a notice to quit on the defendant in Agu. , 1957 (Ext. 'a') and there was no waiver of that notice. Therefore the suit instituted in 1971 was found to be barred by limitation, having been instituted more than 12 years after the determination of the tenancy. Against that decree of dismissal the plaintiffs preferred an appeal and the learned Appellate Court found that the question of waiver had not been properly considered. The decree of dismissal was therefore set aside and the suit was remitted back to the trial court for a proper adjudication with liberty to the parties to suitably amend their pleadings and adduce such further evidence as they might choose.
( 5 ) AFTER remand the trial court found that Anadi Saran Chatterjee was a tenant of the ground floor from 1963. The defence story that one Bala Subra-monium was a tenant of the ground floor was found not to have been established, even though a Rationing Inspector was examined to prove with reference to the R
