Calcutta High Court (Appellete Side)
Smt. Shanti Devi Khandelwal & Anr vs Sri Sanjay Jhunjhunwala on 22 December, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
S.A. No. 76 of 2011
Smt. Shanti Devi Khandelwal & Anr.
Vs.
Sri Sanjay Jhunjhunwala
For the appellant : Mrs. Lopita Banerjee
Mr. Avijit Chakraborty
For the respondent : Mr. Asit Baran Raut
Mr. Tuhin Raut
Judgment on: - 22.12.2017
Ashis Kumar Chakraborty, J.
This second appeal, at the instance of the plaintiffs is directed against the judgment and decree dated July 12, 2010 passed by the learned Judge, 3rd Bench of City Civil Court at Calcutta in Title Appeal No. 22 of 2009, reversing the judgment and decree dated December 15, 2008 passed by the learned Judge, 5th Bench of the Presidency Small Causes Court at Calcutta in Ejectment Suit No. 59 of 1999 directing eviction of the defendant respondent from the suit property.
I consider it convenient to refer to the parties in this appeal by their array before the learned trial Judge. The brief facts relevant for the decision in this appeal are stated below.
The plaintiff no. 1 as the trustees to the estate of Smt. Kissan Deye Khandlewal filed the ejectment suit, before the learned trial Judge, against the defendant claiming a decree for his eviction from the suit property comprising three rooms, one kitchen-cum-storeroom, bath-cum- privy and two verandas on the first floor of premises no. 3, Jyotindra Mohan Avenue, Burtala, Kolkata - 700006 (hereinafter referred to as "the suit property"). The plaint case was that the defendant was a tenant in respect of the suit property under the provisions of the West Bengal Tenancy Act, 1956 (hereinafter referred to as "the Act of 1956") and in spite of receipt of a notice dated October 25, 1999 under Section 13(6) of the Act of 1956, the defendant failed to deliver peaceful and vacant possession of the suit property to the plaintiffs on the expiry of the month of November, 1999. The grounds urged for eviction of the defendant from the suit property were, inter alia, that the latter, without any consent of the plaintiff no. 1 in writing, changed the mode of user of the suit property from residential purpose to business purpose, he committed acts of nuisance and annoyance at the suit property and that the plaintiff no. 1 reasonably required the suit property for himself and his family when they have no other reasonably suitable alternative accommodation elsewhere except the suit property.
After entering appearance in the suit, the defendant filed three separate applications under Sections 17(1), 17(2) and 17(2a) & (b) of the Act of 1956 before the learned trial Judge. In the application under Section 17(1) of the Act of 1956 the defendant prayed for leave to deposit the monthly rent for the suit property at the rate of Rs. 150/- from the month of December, 1999 before the learned trial Judge. In the application under Section 17(2) of the Act of 1956 the defendant denied the relationship the landlord and tenant between the plaintiff no. 1 and himself. He alleged that the plaintiff Smt. Kissan Deye Khandlewal is not the sole trustee of the trust estate and she is not the competent person to file the eviction suit and prayed for an order that the learned trial Judge would decide the relationship of landlord and tenant between the sole plaintiff and himself. In the application under Section 17(2a) and (2b) of the Act of 1956 the plaintiff prayed for an order to allow him to pay the arrear rent if any for the suit property by way of easy instalments. By an order dated January 12, 2001 the learned trial Judge disposed of the applications filed by the defendant under Sections 17(2) and 17(2a) and (2b). By the said order the learned trial Judge held that without deciding the question of ownership of the sole plaintiff in respect of the suit premises it can be safely held that the defendant is a tenant under the sole plaintiff in respect of the suit property at a monthly rent of Rs. 150/- payable according to the English calendar month and that the defendant is a defaulter in payment of rent for the months of October and November, 1999. The learned trial Judge directed the defendant to deposit the arrear rent together with accrued interest thereon amounting to Rs. 303/- in court in favour of the plaintiff by February 15, 2001. The defendant did not assail the said order dated January 12, 2001 passed by the learned trial Judge and deposited the said amount of Rs. 303/- in court.
The defendant filed his written statement and additional written statement alleging, inter alia, that the suit is not maintainable, his tenancy as described in the schedule of the plaint is not correct. He also denied that his tenancy in respect of the suit property was duly determined by the notice dated October 25, 1999 or that the said notice was correctly addressed to him. The defendant alleged that no valid notice of ejectment was served upon him and that in any event, he did not have any obligation to comply with the requisition of the said notice under Section 13(6) of the Act of 1956. The defendant further denied to have committed any act of nuisance at the suit property or that he has caused any act of annoyance to any of his neighbours. He alleged that during pendency of the suit, the plaintiffs have recovered vacant possession of two rooms, one kitchen on the ground floor of the said premises from their erstwhile tenant Smt. Krishna Murari and one room on the third floor of the said building from the erstwhile tenant Sri Monohardas Laddha and as such, the plaintiffs' requirement of the suit property for their reasonable requirement does not arise. In the suit, at the instance of the plaintiffs the learned trial Judge appointed an Advocate Commissioner to hold a local inspection of the said building to note the number of rooms and other accommodation with specific measurement thereof under the occupation of the plaintiff and the defendant respectively at the said building and to file a report before the Court.
Considering the averments made by the plaintiffs and the defendant in their plaint and the written statement, respectively the learned trial Judge framed the following issues:
1. Is the suit maintainable in its present form and in law?
2. Is the notice to quit legal, valid, proper and duly served on the defendant?
3. Is the defendant a defaulter in payment of rent in respect of the suit premises?
4. Is the defendant guilty of conduct which is nuisance or annoyance to the neighbours including the landlord?
5. Does the plaintiff reasonably require the suit premises for her own use and occupation as well as for the use and occupation of her family members?
6. Is their any suitable alternative accommodation available to the plaintiff other than the suit premises?
7. Is the plaintiff entitled to decree for eviction and recovery of khas possession of the suit premises?
8. Is the plaintiff entitled to get other relief?
On July 24, 2008 the following two additional issues were framed by the learned trial Judge.
"9. Is there any relationship of land and tenant between the plaintiff and the defendant in respect of the suit premises?
10. Whether the suit premises is used by the defendant for business purpose though it was let out for residential purpose only?"
Sri Amod Khandelwal, being the son and brother of the plaintiff no. 1 and the plaintiff no. 2, respectively adduced evidence on behalf of the plaintiffs before the learned trial Judge as PW-1. The learned Advocate Commissioner also adduced evidence before the learned trial Judge as PW-2 and as mentioned earlier, she proved her final report before the learned trial Judge which was exhibited as Ext-26. Neither in the written statement, nor in the additional written statement the defendant alleged that his father was the original tenant in respect of the suit property who died leaving behind his wife, two daughters and the defendant himself. In his pleadings, the defendant did not allege that the suit filed by the plaintiffs is bad for non-joinder of the necessary parties, but at the time of cross-examination of PW-1 the defendant sought to make out the case that the suit was bad for non-joinder of necessary parties. During his cross-examination, PW-1 admitted the defendant to have became the tenant in respect of the suit property. He also admitted that all the heirs and legal representatives of the deceased father of the defendant were not impleaded in the suit as tenants in respect of the suit property. In his examination-in-chief on recall, PW-1 proved a letter issued by the defendant as Ext-24. By the said letter the defendant informed the plaintiff no. 1 that after the death of his father Bhagawati Prasad Jhunjhunwala (hereinafter referred to as "Bhagawati Prasad"), his mother, his two sisters and he himself became the tenant in respect of the suit property and after the death of his mother on May 12, 1992, he himself along with two sisters became the tenants in respect of the suit property. In the said letter, the defendant further stated that by swearing two separate affidavits, her two sisters relinquished their right in respect of the suit property in his favour and requested the plaintiff no. 1 to accept himself as the sole tenant in respect of the suit property. In the said letter, the respective affidavits affirmed by the two sisters of the defendant relinquishing their right in the suit property as a tenant thereof was mentioned to have been enclosed therewith. In his cross-examination, PW-1 also stated that along with the said letter, Ext-24 two separate affidavits affirmed by the two sisters of the defendant were also handed over to him, but subsequently they took back those affidavits on the plea that they needed the same for some other purpose. He also denied the suggestions put to him that his statement of the two defendants took back the said affidavits is a false statement or that the defendant is not the sole tenant in respect of the suit property or the said letter, Ext-24 is manufactured for the purpose of the suit. The defendant himself did not depose in the suit and, as such, did not deny or dispute the signature appearing in the said letter, Ext-24 to be his signature. It was the defendant's wife who, as DW-1 adduced evidence on behalf of the defendant in the suit. According to DW-1, in her examination-in-chief since the inception of the tenancy the defendant is residing at the suit property with his family members and since the defendant did not concede to the wrongfully demand of the plaintiffs for enhancement monthly rent for the suit property from Rs. 150/- to Rs. 1500/- the plaintiffs have wrongfully filed the eviction suit. In her examination-in-chief, DW-1 disclosed various challans issued by the learned trial Court evidencing deposit of monthly rent by the defendant in terms of the order passed in the application under Section 17(2) of the Act of 1956. The said challans were collectively exhibited as Ext-D, disclosing that the defendant deposited the monthly rent in respect of the suit property before the learned trial Court, in his own name alone.
At the hearing of the suit it was contended on behalf of the defendant that with the Act of 1997 coming into force on and from July 10, 2001 the said Act of 1956 stood repealed and in view of Section 6(5) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the Act of 1997"), the plaintiffs' suit for eviction against the defendant was not maintainable. The defendant contended that as per Section 6(5) of the Act of 1997 no suit or proceeding could be initiated by any landlord within two years from the date of commencement of the said Act for recovery of possession of any premises to which the provisions of the Act of 1956 did apply, but the provisions of the Act of 1997 do not apply. The learned trial Judge, however, found that the plaintiffs filed the eviction suit against the defendant in the year 1999 and the Act of 1997 came into force on and from July 10, 2001 and therefore, repelled the contention raised by the defendant that the suit was not maintainable. After appreciating both oral, as well as the documentary evidence adduced on behalf of the plaintiffs, the learned trial Judge held that the plaintiffs as the trustees are entitled to file the eviction suit against the defendant and that the suit property has been correctly described in the schedule to the plaint. The learned trial Judge further found that either in the written statement or in the amended additional written statement, the defendant did not raise any defence that he himself together with his two sisters were the tenants in respect of the suit property or that the suit was bad for non-joinder of the necessary parties. The learned trial Judge also found that although DW-1, the wife of the defendant in her evidence stated the signature appearing in Ext-24 is not that of her husband, but the defendant who was the best witness did not come to the Court to deny his signature in the said document or to dispute the genuineness of the said letter. Although in her cross-examination, the defendant no. 1 stated that her husband is not in a position to come to a Court but the learned trial Judge found that DW-1 produced no such document before the Court to prove that her husband is ill and unable to attend the Court. With these findings, the learned trial Judge held that Ext-24 was issued by the defendant and in view of the said document the induction of the defendant as the sole tenant is proper in the eye of law. The learned trial Judge found that the defendant was the sole tenant in respect of the suit premises and as such the notice dated October 25, 1999 (Ext-2) is not bad in law.
With the above findings, the learned trial Judge held that the ejectment suit filed by the plaintiff is maintainable in law and decided the issue with regard to the maintainability of the suit in favour of the plaintiffs. On consideration of the documentary evidence adduced by the plaintiffs, namely the notice dated October 25, 1999 issued by the plaintiffs advocate, Ext-2, the registration receipt Ext-2(a) and the acknowledgement card Ext-2(b), the learned trial Judge held that the said notice dated November 25, 1999 issued by the plaintiffs under Section 13(6) of the Act of 1956 was served upon the defendant on October 28, 1999. With regard to the issue, whether the defendant is a defaulter in payment of rent in respect of the suit property, the learned trial Judge found that in terms of the order dated January 12, 2001 passed under Sections 17(2) and Section 17(2a) and (2b) of the Act of 1956 the defendant has paid the arrear rent and continued to deposit the current monthly rent for the suit property in Court. Therefore, the learned trial Judge held that the defendant is entitled to protection under Section 17(4) of the Act of 1956 and is not liable to be evicted on the ground of default in payment of rent. So far as the Issue no. 9, that is, is there any relationship of a landlord and tenant between the plaintiff and defendant in respect of the suit property, the learned trial Judge found that while disposing of the applications under Sections 17(2) and 17(2a) and (2b) of the Act of 1956, by the order dated January 12, 2002 the Court also disposed of Issue no. 9 concluding that there was a relationship of landlord and tenant between the plaintiff no. 1 and the defendant as such, the defendant was the tenant under the plaintiffs and the said order is still subsisting. Accordingly, the learned trial Judge held that the relationship of landlords and tenant subsisted between the parties and decided the issue no. 9 in favour of the plaintiffs. The learned trial Judge, however, held that the defendant is not guilty of any conduct of nuisance or annoyance to the neighbours including the landlord and the plaintiffs failed to substantiate that the defendant has been using the suit property for business purpose and not for residential purpose. After considering the evidence adduced by the respective parties including the report of the Advocate Commissioner (Ext-26), the learned trial Judge, however, held that the plaintiffs have proved that the suit premises is reasonably required for the use or occupation of the plaintiff no. 2 who has no other reasonable suitable alternative accommodation elsewhere except the suit property. Accordingly, the learned trial Judge decided the sixth and seventh issue in favour of the plaintiffs and held the plaintiffs are entitled to get a decree for eviction and recovery of khas possession of the suit property against the defendant. The learned trial Judge, therefore, passed a decree for eviction against the defendant from the suit property as described in the schedule of the plaint by evicting the defendant therefrom. The learned trial Judge further held that the plaintiffs are entitled to get a decree for costs of the suit. By the decree dated July 12, 2010 the learned trial Judge directed the defendant to vacate the suit property within two months from the date of the decree, failing which the plaintiffs shall be a liberty to recover possession of the suit property by putting the decree in execution.
Feeling aggrieved with the above judgment and decree passed by the learned trial Judge the defendant carried the same in appeal being, Title Appeal No. 22 of 2009 before the learned appellate Court below.
The learned appellate Court below held that when PW-1 admitted the fact that the father of the defendant namely, Bhagawati Prasad was the original tenant in respect of the suit property, on the death of the latter his wife, his two daughters and his son the defendant became the joint tenants of the suit property and after the death of the mother of the defendant on May 12, 1992 the defendant together with his two sisters became remain the joint tenants in respect of the suit property. The learned appellate Court below held that even for the sake of argument, it is accepted that the two sisters relinquished their right and interest in the suit property in favour of the defendant such relinquishment is not valid in the eye of law because relinquishment of the tenancy must be made in favour of the landlord and not in favour of any other co-tenant. By referring to the Division Bench decision of this Court in the case of Smt. Uma Devi Khanna and Anr. Vs. Smt. Ava Rani Das reported in (2005) 2 WBLR (Cal) 845, the learned appellate Court below held that it is well settled law that on the date of the original tenant all the joint tenants must be made parties in a suit for eviction and notice must be served upon all by mentioning their name. According to the learned appellate Court below, in the present case the learned trial Judge did not properly appreciate the legal position regarding notice to quit and it is legality and also the non-inclusion of all the heirs of Bhagawati Prasad as party defendant in the suit. According to the learned appellate Court below, the notice to quit under Section 13(6) of the Act of 1956 was served only upon the defendant without mentioning the name of the other heirs of Bhagawati Prasad who were co- tenants, the said notice is invalid in law and the decision of the learned trial Judge with regard to the issue about the validity of the said notice and service upon the same on the defendant is completely erroneous. The learned appellate Court below further held that in the absence of the two sisters of the defendant, the eviction suit filed against the defendant alone is not maintainable and the decision of the learned trial Judge with regard to the first issue, that is, with regard to the maintainability of the suit is also erroneous. By the impugned judgment and decree the learned appellate Court below allowed the defendant's appeal and set aside the judgment and decree dated December 15, 2008 passed by the learned trial Judge, which has been assailed by the plaintiff in this appeal.
On May 18, 2011 the Division Bench of this Court admitted the present second appeal by framing the following substantial question of law:
"Whether the learned judge in the lower appellate Court substantially erred in law in reversing the decree for eviction on the ground of maintainability of the suit, when such plea of maintainability was not taken specifically in the written statement and there were materials on record to show that on the death of the original tenant and his widow, a new tenancy was created in favour of the defendant, namely, Sanjay Jhunjhunwala."
Assailing the impugned judgment and decree passed by the learned appellate Court below, Mrs. Banerjee, learned advocate appearing on behalf of the plaintiff submitted that in the plaint it was not the case of the plaintiffs that the defendant continued to be tenant in respect of the suit property as an heir and legal representative of his father. Even the defendant, in his pleadings did not allege that he was the tenant in respect of the suit property as an heir of his deceased father or that he along with her two sisters were co-tenants/tenants in common of the suit property or that the suit was not maintainable for non-joinder of his two sisters as necessary parties. It was argued for the plaintiffs that neither in his written statement nor in additional written statement, the defendant alleged that the ejectment notice issued by the plaintiffs under Section 13(6) of the Act of 1956 to be bad and defective on the ground that the same was not addressed to his two sisters. Mrs. Banerjee further contended that in his written statement the defendant did not allege that either at the time of the death of Bhagawati Prasad or at any time thereafter, any of his two sisters resided at the suit property and even in her examination-in-chief, DW-1 did not make any statement that any of the two sisters of the defendant resided at the suit property after the death of their father. In the present case, the plaintiffs proved the letter by the defendant, Ext-24 whereby he informed the plaintiff no. 1 that after the death of her mother, her two sisters relinquished their right of tenancy in respect of the suit property in his favour and the said letter expressly mentioned that the two separate affidavits affirmed by the two sisters of the defendant relinquishing their respective right of tenancy in respect of the suit property in favour of the defendant were also forwarded to the plaintiff no. 1 and in his cross-examination PW-1 stated that the said affidavits were taken back by the defendant on the plea that he needed the same for some other purpose, but the defendant himself, the author of the said letter did not appear before the learned trial Judge to dispute the genuineness of the said letter, Ext-24 containing his signature. Further, the rent deposit challans issued by the Court of Small Causes, Calcutta Ext-D (collectively) produced by the defendant are all in the name of the latter alone and the defendant has not disclosed any rent receipt issued by the plaintiffs in the name of any of his two sisters. Urging all these facts, it was strongly contended on behalf of the plaintiffs appellants that the learned trial Judge after considering the pleadings of the respective parties and appreciating the evidence adduced by the respective parties in detail was correct to hold that the defendant was the sole tenant in respect of the suit property and as such, the notice dated October 25, 1999, Ext-26 issued under Section 13(6) of the Act of 1956 to the defendant alone was a valid notice which was duly received by the latter and the eviction suit filed by the plaintiffs against the sole defendant is maintainable in law and the learned appellate Court below committed a patent error of law in setting aside the judgment and decree passed by the learned trial Judge and dismissing the suit for eviction. It was strongly argued that in the case of Uma Devi Khanna (supra) the facts were totally different and when the said decision has no application in the present case, the learned appellate Court below committed an error of law in relying on the said decision. It was argued that in the instant case in the absence of any defence being set up by the defendant in his written statement to the validity of the notice under Section 13(6) of the Act of 1956 or the maintainability of the eviction suit on the ground of his two sisters also being tenants in common in respect of the suit property, the learned appellate Court below committed an error of law in relying on the said Division Bench decision of this Court in the case of Smt. Uma Devi Khanna (supra) has no application. According to the plaintiffs, the Division Bench decision of this Court in the case of Jaharlal Saha & Ors. Vs. Pradip Saha & Ors. reported in (2006) 1 CHN 513 has no application in the facts of the present case and the learned appellate Court below once again committed an error of law in passing the impugned judgment by relying on the said decision. According to the plaintiffs, the finding of the learned appellate Court below that in the instant case the relinquishment of the tenancy of the suit property by the sisters of the defendant in favour of the latter is not valid in law because relinquishment of the tenancy must be made in favour of the landlord not in favour of other co-tenant is vitiated by patent error of law. On these grounds, the learned counsel appearing for the appellant urged for setting aside of the impugned judgment and decree passed by the learned appellate Court below and restoration of the judgment and decree passed by the learned trial Judge.
However, Mr. Asit Baran Raut, learned advocate appearing for the defendant submitted that in the present case the learned appellate Court below was absolutely correct to hold that the notice dated October 25, 1999 issued by the plaintiffs under Section 13(6) of the Act of 1956 to the defendant alone was an invalid notice and that the eviction suit filed against the defendant alone was not maintainable on the ground of his two sisters being not impleaded is inconsonance with the settled principle of law and this appeal involves no substantial question of law. It was strongly argued that in view of the decision of the Supreme Court in the case of Textile Association (India) Bombay Unit vs. Balmohan Gopal Kurip & Anr. reported in AIR 1990 SC 2053 as well as the Division Bench decisions of this Court in the cases of Smt. Uma Devi Khanna (supra) and Jaharlal Saha (supra) it is settled law that when a tenant dies leaving behind more than one heir and legal representative, all his heirs and legal representatives become the tenants in common in respect of the tenanted property and notice under Section 13(6) of the Act of 1956 issued to one of the heirs the original tenant is not a valid notice and the eviction suit without impleading all the heirs of the deceased original tenant is not maintainable in law. In this regard, the defendant also relied on a Single Bench decision of this Court in the case of Md. Idris alias Md. Idris Ali vs. Anil Kumar De reported in 2002(3) CHN 409. It was, therefore, argued that in view of the said decisions the learned appellate Court below was absolutely correct to allow the appeal filed by the defendant and set aside the judgment and decree passed by the learned trial Judge.
I have carefully considered the materials on record, as well as the arguments advanced by the learned advocates appearing for the respective parties. In the instant case, it was not the plaintiffs' case of the plaintiffs that the defendant was a tenant of the suit property as the legal representatives of Bhagawati Prasad. Even the defendant in his pleadings did not allege that he is a tenant in respect of the suit property as one of the heirs and legal representatives of his father, Bhagawati Prasad or that his two sisters are also the co-tenants or that his sisters are the necessary parties to the suit in whose absence the suit was not maintainable. In his pleading, the defendant even did not allege that inasmuch as the plaintiffs issued a notice dated October 25, 1999 under Section 13(6) of the Act of 1956 to him alone and not to any of his two sisters the said notice was invalid. Further, in his pleadings it was not the case of the defendant that any of his two sisters either at the time of death of Bhagawati Prasad or at any time thereafter resided at the suit property. In his examination-in-chief, DW-1 did not make any statement that any of the two sisters of the defendant either at the time of the death of Bhagawati Prasad or at any time thereafter was residing at the suit property. In the suit, the defendant filed applications under Sections 17(1) and 17(2) of the Act of 1956 and in the said applications he did not allege that apart from himself, his two sisters are also the tenants in common in respect of the suit property. By the order dated January 12, 2001 the learned trial Court disposed of the application of the defendant under Section 17(2) of the Act of 1956 by holding himself to be a tenant in respect of the suit property and decided the Issue no. 9 in the affirmative. The defendant did not challenge the said order dated January 12, 2001 passed by the learned trial Court before any superior forum. During his cross-examination PW-1 stated that the two sisters of the defendant had relinquished their right in respect of the suit property in favour of the defendant and in support of such statement he produced the letter issued by the defendant to the plaintiff no. 1 which was marked as Ext-24. In the said letter the defendant stated that the two sisters had relinquished their right in respect of the suit property in his favour and the relevant affidavits executed by the said two sisters in that regard were also enclosed along with the said letter. In his evidence PW1 further stated that subsequently the defendant took back the said two affidavits for some other purpose. Although DW-1, the wife of the defendant in her examination-in- chief merely stated that the said letter, Ext-24 was a manufactured document but the defendant himself did not appear before the learned trial Judge either to dispute the signature appearing in the said letter, Ext-24 to be his signature or to deny that the two sisters did not relinquish their right in respect of the suit property in his favour. As pointed out by the learned advocate appearing for the plaintiffs. In the case of Smt. Uma Devi Khanna (supra) in their written statement the defendants, the appellants in the appeal raised specific defence that one Ganesh Prasad Khanna, the husband of the appellant no. 1 and the father of the appellant no. 1 was the original tenant in respect of the suit property and the latter died intestate leaving behind his widow and the son (the defendant in a suit) and all the three unmarried daughters who were residing at the suit property at the time of his death and all of them jointly inherited the said tenancy and became the joint tenants in respect of the suit property. Thus, in the said case the defendants, in their written statement, raised a specific defence that in the absence of all the heirs of the deceased original tenant, the eviction suit filed by the plaintiff against only the wife and son of the deceased tenant was not maintainable and in his examination-in-chief the plaintiff landlord did not make any statement denying the said defence made out by the defendants in the written statement and father in his cross-examination he admitted that the original tenant died leaving behind the three daughters who were not impleaded in the suit. Thus, I find that neither the Supreme Court decision in the case of Textile Association (supra) nor the said decision of the Division Bench of this Court in the said case Uma Devi Khanna (supra) has no application in this case. In the facts of this case, even the Division Bench decision of this Court in the case Jaharlal Saha (supra) has also no application. The learned appellate Court below committed an error of law in relying on the said three decisions.
In the instant case when the defendant neither in the written statement nor in the additional written statement made out no case that he himself along with two sisters were tenants in common in respect of the suit property or that notice under Section 13(6) of the Act of 1956 was invalid on the ground of not being addressed to his two sisters or that suit was bad for non- joinder of his two sisters as the defendants, when the defendant deposited the rent of the suit property in his own name and their was no evidence from the side of the defendant to prove that his sisters are also the tenants in respect of the suit property the learned lower appellate committed an error of law in setting aside the judgment and decree passed by the learned trial Judge.
For the reasons as aforesaid, the impugned judgment and decre dated July 12, 2010 passed by the learned lower appellate Court below is set aside and the judgment and decree dated December 28, 2008 passed by the learned trial Judge directing the defendant's eviction from the suit property is restored.
The defendant/respondent is directed to vacate the suit property and handover possession thereof to the appellants within January 31, 2018, failing which the plaintiffs appellants shall be entitled to execute the eviction decree.
There shall, however, be no order as to costs.
The Department is directed to forthwith send down the lower Courts' records to the learned Court below.
Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
[Ashis Kumar Chakraborty, J.]