JUDGMENT

M.M. Das, J.

1. This second appeal has been preferred against the judgment and decree passed by the learned Addl. Civil Judge (Senior Division), Dhenkanal in C.S. No. 123/106 of 2003 which was confirmed by the learned District Judge, Dhenkanal in his judgment dated 21.11.2006 passed in R.F.A. No. 10 of 2004 with certain modifications in regard to the quantum of damages decreed by the lower appellate court. The substantial questions of law on which the second appeal has been admitted are as follows:

1. Whether the suit for eviction is defective and not maintainable in the absence of the four sisters of the respondent as parties when they have got common/joint interest in the property, which is conflicting with that of the respondent?

2. Whether non-impletion of other co-tenants of the appellant renders the decree in-executable and ineffective?

3. Whether the notice under Section 106 of the T.P. Act terminating the tenancy is defective for want of 15 clear days notice ending in a month?

4. Whether the plaintiff alone was competent to issue notice under Section 106 of the T.P. Act when the other co-owners and co-sharers have not given consent either expressly or impliedly and have conflict of interest?

2. In order to decide the above questions, it would be appropriate to state the facts of the case in gist, which are as follows:

The sole respondent filed a suit for eviction of the appellant from the suit premises and for damages. It was the case of the plaintiff-respondent that the deceased father of the plaintiff-respondent, namely, Ananta, let out the ancestral house consisting of two rooms with a Verandha in its rear side to late Hariram Kedia, father of the present appellant who was the defendant, in the year, 1965. The said house appertained to Holding No. 80 in Ward No. 2 of Dhenkanal Municipality corresponding to present Holding No. 158 in Ward No. 10. After death of the original tenant, the appellant-defendant came into possession of the suit house as the sole tenant. The original Landlord i.e. the father of the plaintiff, expired in the year 1982 whereas his mother has expired on 2.12.1997 at Kolkata. The plaintiff in December, 2001 requested the defendant to vacate the suit house within six months as he required the premises for use of his son. Previously an amount of Rs. 1,20,000/-was paid by the defendant-appellant to the plaintiff as well as his mother for sale of the suit house in favour of the defendant. The said amount, however, was returned to the defendant on 18.11.2002. On 19.4.2003, the defendant sent an amount of Rs. 2100/-by way of draft along with a registered letter requesting him to accept the same towards rent of 15 months of his 7/15 share. As per the said letter, rest portion of the rent at the rate of Rs. 300/-per month was due to his four sisters. The plaintiff refused to receive the demand draft and also served a pleader’s notice on 8.5.2003 seeking the defendant to vacate the suit premises within 15 days of receipt of the same. As per the said notice, the plaintiff being the only son of his father badly needed the suit premises and failure to vacate the said premises within the stipulated period would make the defendant liable for payment of Rs. 200/-per day towards damages as trespasser. The notice also revealed that the rent of the suit premises was Rs. 300/-per month. It was further alleged by the plaintiff that in spite of the said notice, the appellant-defendant instead of vacating the premises replied through his Advocate revealing his intention not to vacate the suit premises as requirement of the plaintiff is not genuine. It was asserted by the plaintiff that the defendant is to be treated as trespasser.

3. The appellant-defendant in his written statement while pleading that the suit in the present form is not maintainable due to want of cause of action and bad for non-joinder of necessary parties and for indefiniteness, inter alia, stated that the plaintiff has suppressed that he h