Judgment :

Sugato Majumdar, J. 

The instant appeal is preferred against the judgment and decree in appeal passed by the Civil Judge, Senior Division, 2^nd Court (Additional), Burdwan dated 27^th June, 2001 wherein the Appellate Court upheld the judgment and decree passed by the Trial Court and dismissed the appeal.

The original Title Suit No. 86 of 1992 was filed for eviction of tenant and recovery of possession. One Khealiram Agarwal was the original tenant in respect of one room on the ground floor of the suit premises where the said Khealiram Agarwal used to run grocery shop. The suit premises was very old and dilapidated and required immediate repairing. That apart, the Plaintiffs/Respondent also required the suit premises for own use and occupation after building and rebuilding the same. The original tenant was asked to vacate the premises and the notice was issued under which on expiry of the month of January 1992, tenancy became determined. It was the plea of the Plaintiffs/Respondent that the husband of the Plaintiff No.1 was about to retire and hence needed the suit premises for running business. Postal article, namely, the said notice returned with endorsement “not claimed”. It was contended in the plaint that “not claimed” is a good service and in view of the service of the notice, the tenancy got determined from 1^st February, 1992.

The Appellant/Defendants who are the legal heirs of the original tenant contested the suit by filing written statement denying the reasonableness of requirement of the Respondent/Plaintiffs. According to the Appellant/Defendants, there is sufficient place to accommodate the Plaintiff/Respondents’ family members. It was further pleaded that there was no need for building or rebuilding. According to the Appellant/Defendants, the suit was liable to be dismissed.

On the basis of rival pleadings, the following issues were framed:

1. Have the Plaintiffs any causes of action?

2. Is the suit maintainable in its present form?

3. Is the notice to quit valid, legal and sufficient? If so is the same duly served?

4. Are the Defendants defaulter?

5. Do the Plaintiffs reasonably require the suit premises for their personal use and occupation?

6. Is there any other alternative suitable accommodation of the Plaintiffs for their use than the suit premises?

7. Are the Plaintiffs entitled to get a decree as prayed for?

8. To what other relief, if any are the Plaintiffs entitled to?

The Trial Court decided all the issues in favour of the Respondent/Plaintiffs and decreed the suit and passed the decree of eviction and for recovery of possession. On being aggrieved and dissatisfied, an appeal was preferred by the Appellant/Defendants.

Both the Courts concurred that ejectment notice was properly served. The Appellate Court did not interfere with the finding of the Trial Court that the premises required reasonably by the landlord.

The Appellant/Defendants also challenged the judgment decree introducing a new ground under the Order XLI Rule 2 of CPC to the effect that the Defendant No. 7 expired on 08/04/1996 and inspite of that decree was passed on 31/05/2000 against the dead person which a nullity.

The First Appellate Court, as stated above, confirmed the judgment and decree passed by the Trial Court in terms of the judgment and decree of the Appellate Court dated 27/06/2001. Against this judgment and decree the present appeal was filed. At the time of admission of the appeal, the following three questions of law were framed:

“XIV. For that in the absence of any evidence regarding the date of retirement of the husband of landlady, both the Courts below ought to dismissed the suit on the ground that requirement of the Plaintiff being not immediate is not reasonable and bone fide.

XV. For that in absence of any finding to the effect that the service of the ejectment notice by registered post was not claimed inspite of several tenders to the documents the Learned Courts below ought to have held that presumption regarding service canno