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High Court Of Calcutta
NRIPENDRA KUMAR BHATTACHARYYA
TARA SUNDARI GHOSH - Appellant
Versus
CHHAYARANI DANDAPATH - Respondent
S. A. 351 Of 1987
Decided On : 10/03/1994
LANDLORD AND TENANT - EJECTMENT - JOINT TENANCY - NON-JOINDER OF PARTIES - NOTICE TO QUIT - SERVICE - ADJACENT ROOM - RECOVERY OF POSSESSION - COURT-FEE.
Fact of the Case:
The plaintiff purchased the suit property from the landlord and sought to evict the defendant, the tenant, from the premises. The defendant claimed that she was not the sole tenant but a joint tenant along with the sons and daughters of the deceased tenant. The defendant also challenged the validity of the notice to quit and the service thereof.
Finding of the Court:
The court found that the defendant was the sole tenant under the plaintiff and that the suit did not suffer from non-joinder of parties. The court also found that the notice to quit was duly served upon the defendant. However, the court modified the judgment and decree of the lower court regarding the adjacent room, holding that the plaintiff had not paid the additional court fee and had not made a prayer in the plaint for eviction of the defendant from that room.
Issues: 1. Whether the defendant was the sole tenant or a joint tenant under the plaintiff along with the sons and daughters of the deceased tenant. 2. Whether the notice to quit was duly served upon the defendant. 3. Whether the plaintiff was entitled to recover possession of the adjacent room after eviction of the defendant therefrom.
Ratio Decidendi: 1. The court held that the defendant was the sole tenant under the plaintiff, as evidenced by her own admission in an affirmed application and in a revision petition. 2. The court held that the notice to quit was duly served upon the defendant, and that this finding of fact could not be interfered with in second appeal. 3. The court held that the plaintiff was entitled to recover possession of the adjacent room after eviction of the defendant therefrom, as she had made a prayer for such relief in the plaint and joinder of causes of action is permissible under Order 2, Rule 3 of the Code of Civil Procedure.
Final Decision: The court dismissed the appeal and allowed the cross objection, directing the plaintiff to pay the necessary court fee for her prayer for recovery of the adjacent room after eviction of the defendant therefrom.
( 1 ) THIS appeal is directed against the judgment and decree dated 13/06/1986 passed in Title Appeal No. 679 of 1985 by the Additional District Judge, 6th Court, Alipore whereby the learned Additional District Judge confirmed the judgment and decree passed by the Munsif, lst Additional Court, Alipore on 31/05/1985 in Title Suit No. 19 of 1983, in part.
( 2 ) THE facts of the case, as could be culled from the record, is that the suit premises originally belong to one Sulekha Pal. The said Sulekha Pal inducted one Akkari Ghosh as tenant in respect of 2 rooms and kitchen along with a joint user of privy in the suit premises at a monthly rental of Rs. 35 /payable according to English. Calendar Month.
( 3 ) THE said Sri Akkari Ghosh died leaving behind his wife, the present appellant, seven sons and several daughters as his heirs and legal representatives. It has further been alleged in the plaint that on request by the sons and daughters of Akkari Ghosh the said Smt. Sulekha Pal accepted the wife of Akkari Ghosh, Tara Sundari Ghosh, as the tenant in respect of the said tenancy.
( 4 ) TAKING advantage of the absence of the said Smt. Sulekha Pal from the suit premises defendant Tara Sundari Ghosh tees passed into another adjacent room of suit premises and forcibly occupied the same.
( 5 ) SMT. Pal repeatedly requested the defendant to vacate the said room but in vain.
( 6 ) THE defendant defaulted in payment of rent in respect of the said tenancy since March, 1974.
( 7 ) THE plaintiff purchased the suit property from the said Smt. Sulekha Pal by a registered deed of purchase dated 29-1-1979 along with the said tenancy of the defendant.
( 8 ) THE plaintiff requested the defendant by a letter dated 21-1-1979 to attorn the tenancy in her favour and to pay rent to her both arrears and current.
( 9 ) THE defendant intentionally failed and neglected to pay either the arrear rent or the current rent and thereafter by a notice dated 25/04/1979 the plaintiff terminated the tenancy of the defendant followed by a suit for ejectment of the defendant from the suit premises being Title Suit No. 19 of 1983 in the Court of the 1st Additional Munsif, Alipore.
( 10 ) THE suit was contested by the defendant by filing a written statement wherein the defendant denied the material allegations in the plaint and also challenged the maintainability of the suit.
( 11 ) THE defence against the delivery of possession of the defendant was struck out under section 17 (3) of the West Bengal Premises Tenancy Act.
( 12 ) THE learned Munsif found the suit maintainable, the notice to quit as legal, valid and sufficient and also found that the notice was duly served upon the tenant defendant and that there was a relationship of landlord and tenant between the plaintiff and the defendant.
( 13 ) ON such findings the learned Munsif decreed the suit in favour of the plaintiff for Khas possession in respect of the 3 rooms, one kitchen and a common user of privy.
( 14 ) THE defendant challenged the judgment and decree before the 6th Court of Additional District Judge, Alipore in Title Appeal No. 679 of 1985.
( 15 ) THE learned Additional District Judge by his judgment dated 13/06/1986 concurred with the findings of the learned Munsif regarding the legality, validity and sufficiency of the notice and also concurred with the findings of the learned Munsif that the notice to quit was duly served upon the defendant and there was a relationship of landlord and tenant between the plaintiff and the defendant. But he found that the plaintiff is entitled to a decree of khas possession regarding the tenanted portion of the defendant and not regarding the adjacent room on which the defendant trespassed upon and forcibly occupied.
( 16 ) HE accordingly allowed the appeal in part and modified the judgment and decree of the learned Munsif so far it relates to the adjoining room whereupon the defendant trespassed and forcibly occupied.
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