A notice under section 106 of the Transfer of Property Act is not necessary for eviction under a State Rent Control Act.

( 1 ) THIS Civil First Appeal is directed against the judgment and decree dated 31st August, 1982 and 4th September, 1982 respectively passed by the learned Judge, 2nd Bench, City Civil Court, Calcutte in Ejectment Suit No. 1482 of 1975.

( 2 ) THE respondent No. 1 had filed a Suit for Ejectment against the appellant and the Respondent No. 2 with respect to a property comprising of five rooms, kitchen, bath and privy situated in the premises No. 39, Dr. Jagabandhu Lane, Calcutta-12. The suit was filed by the plaintiff/landlord on a number of grounds available to it under section 13 of the West Bengal Premises Tenancy Act, 1956, including the grounds of reasonable requirement, re-building and sub-letting. Ultimately, however, the plaintiff-landlord gave up the other grounds and confined his suit only to the ground of subletting. The following four issues were framed by the trial court for adjudication in the suit : (1)has the defendant sublet portion of the suit premises without the plaintiff's consent in writing? (2)does the plaintiff reasonably require the suit premises for his own use and occupation? (3)was the notice served? Is the notice valid and sufficient? (4)is the plaintiff entitled to get a decree of ejectment and mense profit?

( 3 ) THE finding of the trial court with regard to the first issue which was the main issue for trial between the parties, was that the appellant had in fact sublet a portion of the house in favour of the respondent No. 2, namely Shri Mahadeb Dolui. This finding was based on the evidence led by the plaintiff/landlord in the course of trial, including his own statement, the statements of the witnesses produced on his behalf.

( 4 ) LEARNED Advocate appearing for the appellant, while challenging the judgment and decree of the trial court, has assailed the same on a number of grounds. The first ground relates to the defect in the notice served upon the appellant by the respondent No. 1. It is contended that the plaintiff/landlord had served a notice earlier, i. e. in June, 1973. It did not act upon the same and did not choose to file any suit against the appellant. Instead, a fresh notice was sent on 25th September, 1974, the service whereof was refused by the appellant. The contention is that unless the first notice was canceled and rescinded, the tenancy between the parties stood terminated and therefore the issuance of the second notice was defective. The suit based on such notice could not be called to be maintainable in the eyes of law. The other ground relates to the sufficiency of evidence with regard to the issues relating to the subletting. It is argued that the learned court below erred in returning the finding on the issue No. 1 in favour of the plaintiff/landlord because enough evidence was not produced by the plaintiff to properly prove the issue No. 1.

( 5 ) IN so far as the question relating to the defect in second notice is concerned, the point is no more res integra in view of the judgment of the Supreme Court in the case of V. Dhanapal Chettiar v. Yesodai Ammal reported in AIR 1979 SC 1745 wherein Their Lordships have clearly set at rest the controversy regarding the service of a notice under section 106 of the Transfer of Property Act. In that judgment it has clearly been held that in order to get a decree or order for eviction against the tenant under any State Rent Control Act it is not necessary to give notice under the Transfer of Property Act. The determination of a lease in accordance with the Transfer of Property Act has been found unnecessary and a mere surplusage case, the landlord cannot get eviction decree against the tenant even after such determination of the tenancy. Since the tenant continues to be so even thereafter, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and thus it is not obligatory to found the proceedings before the court under the relevant State Act on the basis of the determination of the l