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2011 Supreme(Cal) 1378
HIGH COURT OF CALCUTTA
TAPAN KUMAR DUTT, J.
Gour Chandra Chanda - Appellant
Versus
Joydeb Singha - Respondent
S.A. 503 of 2007
Decided on : Sep 29,2011
Hiranmoy Bhattacharya, Anirudha Chatterjee, Srijib Chatterjee
A notice to quit, addressed to all the heirs of the deceased original tenant but served upon one of such heirs, is a valid and legal notice, provided that all such heirs are made parties to the eviction suit unless there is a case of implied surrender.
Headnote:
NOTICE TO QUIT - TENANCY-IN-COMMON - VALIDITY - EVICTION SUIT - SERVICE OF NOTICE: A notice to quit, addressed to all the heirs of the deceased original tenant but served upon one of such heirs, is a valid and legal notice, provided that all such heirs are made parties to the eviction suit unless there is a case of implied surrender.
Fact of the Case:
The plaintiff filed a suit for eviction and recovery of khas possession, arrears of rent, and mesne profits against the defendant and other respondents. The plaintiff alleged that the defendant No.3 was the sole tenant under the plaintiff and that the other defendants had no tenancy right in the suit property. The defendant No.3 contested the suit and claimed that he was the only tenant under the plaintiff after the demise of the original tenant.
Finding of the Court:
The Trial Court and the Lower Appellate Court held that the notice to quit was valid and legal as it was addressed to all the heirs of the deceased original tenant and served upon one of such heirs. The Courts also found that the defendants were tenants-in-common and not joint tenants, and that there was no material on record to show that the other defendants had surrendered their tenancy right in favor of the contesting defendant.
Issues: 1. Whether the notice to quit was valid and legal, considering that it was served upon only one of the heirs of the deceased original tenant. 2. Whether the defendants were tenants-in-common or joint tenants. 3. Whether there was any implied surrender of tenancy right by the other defendants in favor of the contesting defendant.
Ratio Decidendi: 1. A notice to quit, addressed to all the heirs of the deceased original tenant but served upon one of such heirs, is a valid and legal notice, provided that all such heirs are made parties to the eviction suit unless there is a case of implied surrender. 2. The defendants in the suit were tenants-in-common and not joint tenants, as they inherited the tenancy as heirs of the deceased original tenant. 3. There was no material on record to show that the other defendants had surrendered their tenancy right in favor of the contesting defendant.
Final Decision: The second appeal was disposed of by affirming the judgments and decrees passed by the learned Courts below, subject to the modification that the decree with regard to arrear of rent granted by the learned Trial Court and affirmed by the learned Lower Appellate Court was set aside.
TAPAN KUMAR DUTT
1. THIS Court has heard the learned Advocates for the respective parties.
2. The facts of the case, briefly, are as follows: The plaintiff/respondent No.1 filed a suit for eviction and recovery of khas possession and also for a decree of arrear rent and mesne profits against the defendant No.3/appellant and the other respondents mentioned in the cause title of the memorandum of appeal. The plaintiffs such suit was numbered as title suit 34 of 2001 and was placed before the learned Civil Judge (Junior Division), Second Court, Krishnagar, Nadia. The plaintiffs case was that the plaintiff is the owner of the suit property which is a shop room on the ground floor of a two storied pucca building on a certain plot of land. The original tenant under the plaintiff was one Dulal Chandra in respect of the said shop room where Dasakarma Bhander was being run by the said Dulal Chandra at a monthly rental or Rs. 101/- payable according to the Bengali Calender month. The plaintiffs further case was that the said Dulal Chandra died leaving behind the defendants as his heirs and legal representatives but the defendants committed default in payment of rent after Jaistha 1399 B.S. The Plaintiff has stated in his plaint that through his Advocate the plaintiff served a notice under Section 106 of the Transfer of Property Act upon the defendants but the defendants failed to comply with the notice and the plaintiff was compelled to file the said suit.
The defendant No.3 only appeared in the said suit to contest the same and filed written statement denying the material allegations made in the plaint but admitting that the plaintiff is the owner of the suit property and that the said Dulal Chandra (father of the defendant No.3) was a tenant under the plaintiff at a rental of Rs. 70/- as per Bengali Calendar Month and that after the demise of the said Dulal Chandra the defendant No.3 had become a direct tenant at a rental of Rs. 101/- as per Bengali Calendar month on the basis of an oral agreement between the plaintiff and the defendant No.3 on 7th Sravana 1399 B.S. The defendant No.3s case was that neither the defendant Nos. 1 and 2 nor the defendant Nos. 4 to 6 had any tenancy right in the suit property. The defendant No.3 further alleged that the plaintiff did not serve any notice either upon the defendant No.3 or upon the other defendants. The defendant No.3 further stated in the written statement that the other defendants do not have a cordial relationship with the defendant No.3 owing to some family affairs and the defendant No.3 is living separately from the other defendants. The defendant No.3 has also alleged that the said Dulal Chandra used to pay rent to the plaintiff and subsequently the defendant No.3 also regularly paid rent to the plaintiff but the plaintiff did not issue any rent receipt either in favour of the said Dulal Chandra or in favour of the said defendant No.3. The defendant No.3 alleged in the written statement that after the creation of the new tenancy in favour of the defendant No.3 the other defendants have no right in the suit property and they have no locus standi to claim any such right as tenant in the suit property and the defendant No.3 is the only tenant under the plaintiff. The defendant No.3 further alleged in the written statement that the defendant No.3 had sent the rental amount through money order on 13.03.2001 and 16.04.2001 but the same were refused.
3. The said suit came up for hearing when the learned Trial Court by judgment and decree dated 19th January, 2006 decreed the said suit on contest against the defendant No.3 and ex parte against the other defendants by directing that the plaintiff does get a decree of recovery of khas possession of the suit premises after evicting the defendants therefrom and the defendants were directed to quit and vacate the suit premises within 60 days from the date of passing of the said judgment failing which the plaintiff was given liberty to execut
