IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side Present:

The Hon’ble Justice Biswaroop Chowdhury C.O. 1850 of 2021 Amitava Dutta VERSUS Upendra Baitha And Ors.

for the petitioner: Mr. Dyutiman Banerjee, Adv.

Mr. Navojit Mukherjee, Adv.

for the Opposite Party No.1. Mr. Sourave Chatterjee, Adv.

Last Heard on: February 24, 2023 Judgment on: March 13, 2023 Biswaroop Chowdhury,J:

The Petitioner before this court is a landlord/plaintiff in a suit for eviction and is aggrieved by an order dated 13/04/2021 passed by Learned civil Judge (Jr division) 3rd Court at Alipore in Ejectment suit no 177of 2018.

The case of the plaintiff/petitioner may be summed up thus 1. The petitioner/plaintiff is the owner of the suit property and the predecessor of the defendant was a monthly tenant under the plaintiff in respect of a garage at a monthly rental ofRs45/. The father of the plaintiff was the owner in respect of the suit property and he died intestate on30-06-1977. At the time of death he left behind his wife one daughter and the plaintiff being his son. All of them got 1/3rd undivided share in the suit property. The plaintiffs mother during her lifetime executed a Will wherein she bequeathed her entire movable and immovable properties in favour of the plaintiff. The plaintiff obtained probate of the said Will and became owner of two third share of the property. The mother of the plaintiff during her lifetime inducted a tenant in the said property, namely Adalat Baitha and after death of the mother of the plaintiff the plaintiff became landlord in respect of Adalat Baitha. Adalat Baitha died on10-04-2009 and according to section2 (g) of the West Bengal premises tenancy Acts 1997 the right of tenancy of the three sons of said Adalat Baitha was for a period of five years from the death of the original tenant and the right of tenancy ceased beyond that point. The plaintiff also reasonably requires the suit property and the defendant was a ha bitual defaulters of rent.

2. The plaintiff sent the defendant notice under section6 of the West Bengal Premises Tenancy Act 1997 but the defendant refused to quit, vacate and deliver Khas possession of the suit property. Hence this suit.

3. The defendant contested the suit by filing written statement denying all the allegations therein and prayed for dismissal of the same. The specific case of the defendant is that after the death of said Adalat Baitha the wife and three sons of Adalat Baitha inherited the tenancy right and therefore at present they are the tenants in respect of the suit property at the moment. Further the defendant was not a habitual defaulter and that the plaintiff did not reasonably require the suit property.

4. In the said suit the defendant filed an application under section7 (2) of the West Bengal premises tenancy acts 1997, and the plaintiff filed his objection thereto. In the said application the defendant stated that after death of said Adalat Baitha the wife and three sons, of Adalat Baitha inherited the tenancy right and therefore at present they are the tenants in respect of suit property.

5. That during pendency of the said application the petitioner has come to know for the first time on04/02/2021 from the death report filed by the advocate of the sole defendant that the sole defendant died on 22/07/2020 in Bihar.

6. According to the petitioner as from section 2 (g) of the West Bengal Premises Tenancy Act 1997 it can be understood that the right of tenancy was limited for five years to the sons of the defendant and after the death of the original tenant the same stands extinguished thereafter. Thus the sons of the sole defendant have no right of tenancy of their own and they have no right to contest the suit. The plaintiff filed an application under Order 22 Rule 4A read with Section 151 of the code of civil procedure praying for appointment of administrator general or any officer to represent the original defendant.

7. By order dated 13/04/2021 the learned tri