The main legal point established in the judgment is the interpretation of the West Bengal Premises Tenancy Act, 1997, regarding the implied surrender of tenancy and the maintainability of a suit for eviction without impleading the heirs of the deceased original tenant as defendants.

JUDGMENT

Biswajit Basu, J. - This is a second appeal by the plaintiffs-landlords against the appellate decree dismissing the plaintiffs' ejectment suit. The plaintiffs filed the said suit being Ejectment Suit No. 24 of 2008 before the learned Judge, 4th Bench, Presidency Small Causes Court of Calcutta for eviction of the defendants, the respondents herein, on the grounds that the plaintiffs require the suit property for their own use and occupation and for the use and occupation of the members of their family, the defendants have sublet the suit property without obtaining prior written permission from the plaintiffs and they are also defaulter in payment of rent since September, 2005.

2. The suit was contested by the defendant no. 1 only. The said defendant in her written statement apart from denying the plaint case, took a specific defence that Ajay Narayan Roy (hereinafter referred to as 'Ajay'), was the original tenant and he used to stay in the suit property along with his four brothers, since deceased in joint mess. The said Ajay died on October 31, 1983 and after his death, the rent receipts were issued in favour of his brother, Ranjit Narayan Roy(hereinafter referred to as 'Ranjit') as the head of the family, who happened to be the husband of the said defendant.

It is the further case of the defendant no. 1 that on the death of Ajay, the said tenancy devolved upon his widow and four sons which is still continuing, as such the suit is not maintainable due to non-service of notice of eviction upon all the said heirs of Ajay.

3. The learned Trial Judge by his judgment and decree dated June 15, 2015 overruled the aforesaid objection holding that non-service of notice of eviction upon the heirs of Ajay did not affect the maintainability of the said suit since the said heirs by allowing Ranjit to pay rent to the landlords and to get the rent receipts issued in his name, had surrendered the tenancy which devolved upon them on the death of Ajay. The learned Trial Judge decreed the suit on two-fold grounds i.e. the plaintiffs require the suit property for their own use and the defendant no.1 has sublet a portion of the suit property in favour of two sons of Ajay on receipt of rent.

4. The defendant no.1, aggrieved by the said judgment and decree of the learned Trial Judge, preferred the connected Title Appeal No. 36 of 2015. The learned Judge, 3rd Bench, City Civil Court at Calcutta by the impugned judgment and decree dated December 23, 2016 has set aside the judgment and decree of the learned Trial Judge. The Appeal Court below although affirmed the findings of the learned Trial Judge regarding the plaintiffs' requirement of the suit property but set aside the findings on the issue of subletting. The Appeal Court below however has dismissed the suit holding that the tenancy was in the name of Ajay and after his death, his heirs, particularly his two sons who are admittedly residing and occupying a portion of suit property are also tenants and the suit is not maintainable in their absence.

5. The instant second appeal was admitted by the Hon'ble Division Bench under Order XLI Rule 11 of the Code of Civil Procedure to answer the following substantial questions of law:-

i) Whether the learned appeal Court has committed substantial error in law in not appreciating from the materials on record that it has been proved beyond doubt that fresh tenancy was created in favour of Ranjit Narayan Roy after the death of Ajay Narayan Roy whilst the erstwhile landlord collected rent from said Ranjit Narayan Roy and thereafter from defendants by issuing rent receipts since death of Ranjit Narayan Roy?

ii) Whether the learned appeal Court has committed substantial error in law in not appreciating that legal heirs of Ajay Narayan Roy surrendered their tenancy and fresh tenancy was created in favour of Ranjit Narayan Roy after the death of Ajay Narayan Roy?

6. This Court, considering the respective cases of the parties felt necessary to frame the following