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HIGH COURT OF CALCUTTA
Pranab Kumar Chattopadhyay, J.
Hirak Roy Chowdhury
Vs.
Dulal Chowdhury & Ors.
SA No.439 of 1995
Decided On : August 1, 2001
WEST BENGAL PREMISES TENANCY ACT - TENANT - INHERITANCE - SUCCESSION - ABATEMENT OF SUIT - GROUNDS FOR EVICTION - INTERPRETATION OF SECTION 13, 15(1)(D), 15(2)(B), 2(H) - SUCCESSION OF TENANCY RIGHTS BY HEIR - SUBSTITUTION OF HEIRS - LIMITATION PERIOD - JURISDICTION OF APPELLATE COURT TO DETERMINE ISSUES BASED ON EVIDENCE ON RECORD.
Fact of the Case:
The appellant, Hirak Roy Chowdhury, challenged the eviction decree passed against him in a suit filed under the West Bengal Premises Tenancy Act. The original defendant, Sulata Ghosh, died during the pendency of the suit, and the plaintiffs sought to substitute Hirak as her heir. However, the plaintiffs later amended the substitution petition to substitute Madan and Bankim Ghosh as Sulata's heirs. The appellant contended that he was the heir of Sulata and should be regarded as a tenant under the Act. The plaintiffs argued that Hirak was not the heir of Sulata and could not be considered a tenant.
Finding of the Court:
The court held that Hirak was the brother's son of Sulata and, as such, was her heir under section 15(1)(d) of the Hindu Succession Act. The court also held that Hirak should be regarded as a tenant under section 2(h) of the West Bengal Premises Tenancy Act since he was residing with Sulata at the time of her death. The court further held that the suit had abated as a whole due to the plaintiffs' failure to obtain an order setting aside the abatement after condoning the delay in substituting Hirak as Sulata's heir. The court also held that no decree for eviction could be passed without establishing any ground as mentioned in section 13 of the Act.
Issues: 1. Whether the appellant should be considered as a tenant in respect of the suit premises under the West Bengal Premises Tenancy Act being an heir of the deceased tenant (original defendant). 2. Whether the suit had abated in view of non-substitution of heir/heirs of the deceased defendant by the plaintiffs within the stipulated time. 3. Whether any decree for eviction in a suit filed under the West Bengal Premises Tenancy Act can be passed without any ground as mentioned in section 13 of the Act being established.
Ratio Decidendi: 1. The court interpreted section 15(1)(d) of the Hindu Succession Act to hold that the appellant, as the brother's son of the deceased tenant, was her heir. 2. The court interpreted section 2(h) of the West Bengal Premises Tenancy Act to hold that the appellant, as the heir of the deceased tenant, should be regarded as a tenant since he was residing with her at the time of her death. 3. The court interpreted section 13 of the West Bengal Premises Tenancy Act to hold that no decree for eviction could be passed without establishing any ground as mentioned in the section.
Final Decision: The court allowed the appeal, set aside the judgment and decree passed by the lower courts, and dismissed the suit filed by the plaintiffs.
Pranab Kumar Chattopaphyay, J.: This second appeal is directed against the judgment and decree dated 31st July, 1992 and 10th August, 1992 respectively passed by the learned Assistant District Judge, 3rd Court, Alipore in the Title Appeal No. 222 of 1991 affirming the judgment and decree dated 30th April, 1991 and 7th June, 1991 respectively by the learned Munsif, 2nd Court, at Alipore in Title Suit No. 348 of 1978.
2. The appeal is at the instance of the defendant in a suit for eviction and mesne profits. The plaintiffs are the owners of the suit premises at premises being 20B, Bullygung Station Road where the original defendant Smt. Sulata Ghosh (since deceased) was a monthly tenant in respect of the ground floor at a rental of Rs. 110/- payable according to English calendar month. The suit was filed on the ground of default in payment of rent since February, 1977 and for causing damage to the suit premises. The other grounds mentioned in the plaint by the plaintiffs are subletting of a portion of the suit premises to one Bireswar Roy Chowdhury without the knowledge and consent of the plaintiffs and the plaintiffs also reasonably required the suit premises for their own use and occupation. A notice of ejectment was served upon the defendant and in spite of service of the said notice defendant refused to vacate the tenanted portion of the suit premises and hence, the plaintiffs brought this suit against the original defendant Smt. Sulata Ghosh (since deceased). The original defendant Smt. Sulata Ghosh (since deceased) contested the suit by filing written statement.
3. During the pendency of the suit said Sulata Ghosh died in the year 1986 and subsequently Hirak Roy Chowdhury, the appellant herein, was added as defendant. The said Hirak Roy Chowdhury also contested and resisted the suit by filing a supplementary written statement denying the allegations and claims of the plaintiffs made in the plaint. Deceased defendant Sulata Ghosh in her written statement categorically stated that her brother Bireswar Roy Chowdhury also had been residing in the suit premises along with his family members since 1947. The original defendant in her written statement categorically denied all the grounds of reasonable requirement, subletting, default in payment of rent and also causing damage to the suit premises as were alleged by the plaintiffs.
4. According to the deceased defendant, the suit premises was originally let out to her late husband Jitendra Nath Ghosh in 1946 by the then owner and landlord Shri Janaki Nath Sen. From the inception of tenancy Bireswar Roy Chowdhury, brother-in-law of the then tenant Jitendra Nath Ghosh, had been residing in the said suit premises with his family members. Said Bireswar Roy Chowdhury is the father of the present appellant Hirak Roy Chowdhury. The then owner transferred the property in favour of the predecessor-in-interest of the present respondent in the year 1960. Jitendra Nath used to pay rent to the new landlord. Jitendra Nath, the original tenant, died intestate in July, 1976 leaving behind him his widow Sulata as his sole legal heir and accordingly, Sulata Ghosh became the tenant in respect of the said ground floor flat. It may be mentioned here that Jitendra and Sulata were issueless. In the year 1978 ejectment suit was filed against Sulata Ghosh.
5. It is the specific case of the deceased defendant Sulata that said Bireswar Roy Chowdhury was her brother and the defendant never sublet the suit premises nor cause any damage or mischief to the said premises. It was also denied by the defendant that the plaintiffs required the suit premises reasonably for themselves and/or for the members of their family. It may be mentioned herein that during the pendency of the suit original defendant Sulata died and the said death of Sulata was reported to the Trial Court by the learned Advocate-on- Record on 12th November, 1986. Pursuant to the said death report on 17.11.86 an application for substitution wa
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