Point of Law: Suit for eviction of tenant - Ex-parte Decree - Joint Tenant - Appellants had knowledge about ex-parte decree prior to death of Joint Tenant.

JUDGMENT :

SHIVAKANT PRASAD, J.

1. This appeal is directed against the order dated 23.06.2011 passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Miscellaneous Appeal No. 23 of 2010 affirming the judgment and order dated 11.03.2010 passed by the learned Judge, 5th Bench Presidency Small Causes Court, Calcutta in Miscellaneous Case No. 17 of 2008 under Order 21 Rule 97 of the Code of Civil Procedure in connection with Title Execution Case No. 256 of 2007 arising out of Ejectment Suit No. 468 of 2001 (original Ejectment Suit No. 452 of 1995 in the City Civil Court at Calcutta), inter-alia on the grounds that the learned Trial Judge on the preliminary point of case should have sent it on remand under the provisions of Order 41 Rule 23 of the Code of Civil Procedure instead of deciding the Appeal on merits at the Appellate stage for the first time.

2. Secondly, the learned Judge of the Court of Appeal below ought to have held that the suit was not maintainable in law and in fact because on the death of the original tenant Bhaskar Chandra Ghosh, all his sons and daughters who were residing with him at the time of his death became tenants-in-common and the notice of eviction should have been addressed to each of them.

3. Thirdly, the learned Judge of the Court of Appeal below misconceived the concept of implied surrender under Section 111(f) of the Transfer of Property Act in the facts of the case as there was never any express or implied surrender and the possession of the petitioners/appellants was in no other capacity than that of tenants and non-payment of rent even for a long period can never be a criterion for the doctrine implied surrender and if that could be the case then there was no necessity of bringing the suit against Ranjit Ghosh inter-alia, on the ground of default alleging that he did not pay rent since the year Bhaskar Chandra Ghosh died in 1988.

4. Fourthly, that express or implied surrender or relinquishment can be done by the tenant to the landlord only and to no one else including to any co-tenant or tenant-in-common and the learned Judges of the Courts below have taken erroneous view in law in entertaining the Affidavit Exhibit A said to have been executed by the defendant of the suit, which could not be accepted as piece of evidence for want of compliance of Order 19 Rule 1 of the Code of Civil Procedure.

5. The appellants filed Misc. Case under Order 21 Rule 101 read with Section 151 of C.P.C. against the plaintiff/decree holder namely Jagannath Dey and the defendant namely Ranjit Ghosh and other O.P. Nos. 3 to 8 contending that their father Bhaskar Chandra Ghosh was the original tenant in respect of the premises no. 3, Anath Babu Bazar Lane, Calcutta-6 who died on 30.01.88 leaving behind him, his wife, three sons and six daughters. The widow of said original tenant died on 15.6.2007, one son Lakshmi Narayan died on 28.12.07, and his daughter Rama Ghosh had died long ago. Admittedly, the appellants herein are the daughters of the original tenant in respect of the decretal premises to which they claim to have inherited the decretal premises on demise of their father.

6. According, to the appellants, the plaintiff/respondent namely, Jagannath Dey had filed Ejectment Suit against the only one of heirs of Bhaskar Chandra Ghosh namely, Ranjit Ghosh defendant/proforma respondent but the other heirs of the original tenant were not impleaded in the said ejectment suit. The said ejectment suit was contested by Ranjit Ghosh by filing written statement and the petition under Section 17(2) and 17(2A) (b) of the W.B.P.T. Act were also filed.

7. The appellant’s contention is that since the death of their father, rent receipts were not issued in the name of all heirs of the original tenant and the said ejectment suit was disposed of as ex-parte on 10.8.07 beyond the knowledge of the appellants in collusion with said Ranjit Ghosh. The ex-parte decree was put into execution by the decree holder/respondent herein