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High Court Of Calcutta
TARUN CHATTERJEE
SMT.MINATI SEN ALIAS SMT.D.P.SEN - Appellant
Versus
KALIPADA GANGULY - Respondent
S. A. 621 Of 1993
Decided On : 06/27/1997
TARUN CHATTERJEE, J. ( 1 ) THIS appeal is against a judgment of affirmance in a suit for eviction. The respondent, as a plaintiff, instituted the suit against the predecessor in interest of the appellants for eviction from the premises as fully described in the schedule of the plaint on the grounds of bona fide requirement, subletting and violation of Sections 108 (m) (o) (p) of the Transfer of Property Act.
Fact of the Case:
The plaintiff/respondent instituted the suit against the predecessor in interest of the appellants for eviction from the premises as fully described in the schedule of the plaint on the grounds of bona fide requirement, subletting and violation of Sections 108 (m) (o) (p) of the Transfer of Property Act.
Finding of the Court:
After considering the rival submissions made on behalf of the parties on the question of abatement and after going through the materials on record including the application for substitution and the orders passed by the trial Court allowing the application for substitution, I am of the view that in the facts and circumstances of this case and in view of the law on the question of abatement decided by different Courts of our country and also by the Supreme Court, it would not be possible for me to hold that the order passed by the appellate Court on the question of abatement on the death of original defendant was illegal and without jurisdiction.
Issues: Whether the appellate court acted illegally in granting a decree for eviction on the ground of violation of Section 108 (m) (o) (p) of the Transfer of Property Act? Whether the case of subletting was proved? Whether the tenancy was a joint tenancy or solely in the name of D. P. Sen? Whether the question of waiver of right to evict on the ground of subletting shall arise although Dr. A. S. Roy was allowed to stay in the suit premises with the knowledge of the plaintiff/respondent, when no consent was obtained in writing from the landlord? Whether the order passed by the appellate Court on the question of abatement on the death of original defendant was illegal and without jurisdiction?
Ratio Decidendi: 1. The appellate court acted illegally in granting a decree for eviction on the ground of violation of Section 108 (m) (o) (p) of the Transfer of Property Act, as the issue was not pressed by the plaintiff/respondent in the trial Court. 2. The case of subletting was proved, as the defendant had practically admitted that the rent was paid in his name and that at the time of induction the original defendant took possession first of the suit premises and thereafter Dr. A. G. Roy started living in the ground floor exclusively in the suit premises. 3. The tenancy was solely in the name of D. P. Sen, as the counter-foils of the rent receipts did not bear the signature of the original defendant and the defendant admitted in paragraphs 4, 8 and 10 of the written statement that it was the original defendant who was inducted in the suit property by the predecessor in interest of the plaintiff, and Dr. A. G. Roy was in exclusive possession of the ground floor of the suit premises. 4. The question of waiver of right to evict on the ground of subletting shall not arise although Dr. A. S. Roy was allowed to stay in the suit premises with the knowledge of the plaintiff/respondent, when no consent was obtained in writing from the landlord. 5. The order passed by the appellate Court on the question of abatement on the death of original defendant was not illegal and without jurisdiction, as the plaintiff/respondent had satisfactorily explained that she was prevented by sufficient cause in making the application for substitution within the prescribed period of limitation and delay, if there be any, deserved to be condoned.
Final Decision: Appeal dismissed.
( 1 ) THIS appeal is against a judgment of affirmance in a suit for eviction. The respondent, as a plaintiff, instituted the suit against the predecessor in interest of the appellants for eviction from the premises as fully described in the schedule of the plaint on the grounds of bona fide requirement, subletting and violation of Sections 108 (m) (o) (p) of the Transfer of Property Act.
( 2 ) SO far as the ground of bona fide requirement is concerned, it appears that during the pendency of this appeal, an application for taking into consideration of subsequent events has been filed at the instance of the appellant to which affidavit in opposition and affidavit in reply have also been filed by the parties. When some argument was advanced by the learned counsel for the parties on the question of bona fide requirement, an affidavit was filed by the plaintiff/respondent from which it appears that the plaintiff/respondent does not press ground of bona fide requirement. In view of the fact that an affidavit has been filed 8 by the plaintiff/respondent in this Court saying that he is not pressing the ground of bond fide requirement for eviction of the appellant, no decree can be passed on the ground of bona fide requirement.
( 3 ) SO far as the ground of violation of Section 108 (m) (o) (p) of the Transfer of Property Act is concerned, I am of the view that the Appellate court acted illegally in granting a decree for eviction on such a ground. In the plaint, a case was made out that the tenant had illegally constructed one reservoir in the bath room of the first floor and also another reservoir on the ground floor. The fact of making such construction was however, denied by the defendant/tenant in his written statement. An issue was framed which is as follows :-"is the defendant guilty of damaging the suit property by way of addition or alteration?"this was issue No. 7. Although this issue was not pressed by the plaintiff/respondent in the trial Court, the appellate Court however, granted a decree on this ground. In my view, when issue No. 7 was not pressed by the plaintiff/respondent in the trial Court, there was no justification for the appellate Court to go into this question and decide the same in favour of the plaintiff/ respondent. In the case of Premchand Manik Chand v. Fort Gloster Jute Manufacturing Company Ltd. , (195960) 64 Cal WN 103 : (AIR 1959 Cal 620), it has been held that when a party has raised an issue in the trial Court, and deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage. Mr. Mahapatra, appearing for the plaintiff/respondent also did not seriously argue that it was open to the appellate Court to decide the said issue in appeal although the plaintiff/ respondent did not press the same in the trial Court.
( 4 ) IN view of the above, therefore, the ground for eviction relating to violation of Section 108 (m) (o) (p)of the Transfer of Property Act was not available to the plaintiff/respondent. Accordingly, no decree could be passed by the appellate Court on such a ground.
( 5 ) LET me now consider the ground of subletting. In the plaint, the plaintiff asserted that the original defendant had sublet a part of the suit premises to one Dr. A. G. Roy without the consent of the plaintiff or his predecessor in interest in writing. In denying the case of subletting as made out by the plaintiff/respondent, the original defendant categorically asserted in his written statement that he and the said Dr. A. G. Roy used to reside jointly in the suit premises and were inducted by the original plaintiff, Saroja Bala Devi (deceased) on rental basis with the understanding that the original defendant will live with Dr. A. G. Roy in the suit premises. It was also asserted in the written statement that the tenancy commenced in the year 1956 and since then Dr. A. G. Roy was living there and that their tenancy was a joint tenancy and they paid rent jointly since incept
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