Calcutta High Court (Appellete Side)
Gour Chandra Chanda vs Joydeb Singha & Ors on 29 September, 2011
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice :- Tapan Kumar Dutt
S.A. 503 of 2007
Gour Chandra Chanda.
- Versus -
Joydeb Singha & Ors.
Mr. Hiranmoy Bhattacharya,
.... For the Appellant
Mr. Anirudha. Chatterjee,
Ms. Srijib Chatterjee.
.... For the Respondents.
Heard on: 31.03.2011, 07.04.2011, 08.04.201.
Judgment on: 29.09.2011.
Tapan Kumar Dutt, J:
This Court has heard the learned Advocates for the respective parties. The facts of the case, briefly, are as follows:
The plaintiff/respondent No.1 filed a suit for eviction and recovery of khas possession and also for a decree of arrear rent and mesne profits against the defendant No.3/appellant and the other respondents mentioned in the cause title of the memorandum 2 of appeal. The plaintiff's such suit was numbered as title suit 34 of 2001 and was placed before the learned Civil Judge (Junior Division), Second Court, Krishnagar, Nadia. The plaintiff's case was that the plaintiff is the owner of the suit property which is a shop room on the ground floor of a two storied pucca building on a certain plot of land. The original tenant under the plaintiff was one Dulal Chandra in respect of the said shop room where 'Dasakarma Bhander' was being run by the said Dulal Chandra at a monthly rental or Rs. 101/- payable according to the Bengali Calender month. The plaintiff's further case was that the said Dulal Chandra died leaving behind the defendants as his heirs and legal representatives but the defendants committed default in payment of rent after Jaistha 1399 B.S. The Plaintiff has stated in his plaint that through his Advocate the plaintiff served a notice under Section 106 of the Transfer of Property Act upon the defendants but the defendants failed to comply with the notice and the plaintiff was compelled to file the said suit.
The defendant No.3 only appeared in the said suit to contest the same and filed written statement denying the material allegations made in the plaint but admitting that the plaintiff is the owner of the suit property and that the said Dulal Chandra (father of the defendant No.3) was a tenant under the plaintiff at a rental of Rs. 70/- as per Bengali Calendar Month and that after the demise of the said Dulal Chandra the defendant No.3 had become a direct tenant at a rental of Rs. 101/- as per Bengali Calendar month on the basis of an oral agreement between the plaintiff and the defendant No.3 on 7th Sravana 1399 B.S. The defendant No.3's case was that neither the defendant Nos. 1 and 2 nor the defendant Nos. 4 to 6 had any tenancy right in the suit property. The defendant No.3 further alleged 3 that the plaintiff did not serve any notice either upon the defendant No.3 or upon the other defendants. The defendant No.3 further stated in the written statement that the other defendants do not have a cordial relationship with the defendant No.3 owing to some family affairs and the defendant No.3 is living separately from the other defendants. The defendant No.3 has also alleged that the said Dulal Chandra used to pay rent to the plaintiff and subsequently the defendant No.3 also regularly paid rent to the plaintiff but the plaintiff did not issue any rent receipt either in favour of the said Dulal Chandra or in favour of the said defendant No.3. The defendant No.3 alleged in the written statement that after the creation of the new tenancy in favour of the defendant No.3 the other defendants have no right in the suit property and they have no locus standi to claim any such right as tenant in the suit property and the defendant No.3 is the only tenant under the plaintiff. The defendant No.3 further alleged in the written statement that the defendant No.3 had sent the rental amount through money order on 13.03.2001 and 16.04.2001 but the same were refused.
The said suit came up for hearing when the learned Trial Court by judgment and decree dated 19th January, 2006 decreed the said suit on contest against the defendant No.3 and ex parte against the other defendants by directing that the plaintiff does get a decree of recovery of khas possession of the suit premises after evicting the defendants therefrom and the defendants were directed to quit and vacate the suit premises within 60 days from the date of passing of the said judgment failing which the plaintiff was given liberty to execute the decree through the Court. The learned Trial Court further directed that the plaintiff does also get a decree of arrear of rent to the tune of Rs. 9393/- from the defendants subject to payment of requisite Court fees on that account and defendants were directed to pay to the 4 plaintiff the said amount within 60 days from the date of the said judgment failing which the plaintiff was given liberty to realise the said amount from the defendants by way of putting the decree into execution. The learned Trial Court further directed that the plaintiff does also get a decree of mesne profits at the rate of Rs. 101/- per month for the period from Chaitra 1407 B.S. till recovery of possession of the suit premises.
That challenging the said judgment and decree passed by the learned Trial Court the defendant No.3 preferred an appeal being Title Appeal No. 44 of 2006 which was placed before the learned Civil Judge (Senior Division), First Court, Krishnagar. The learned Lower Appellate Court by judgment and decree dated 22nd December, 2006 dismissed the said title appeal and affirmed the judgment and decree passed by the learned Trial Court.
The learned Trial Court found that the defendant No.3 has admitted the ownership of the plaintiff in respect of the suit property but the defendant No.3 has failed to file any paper to show that the plaintiff admitted the said defendant No.3 as his only tenant and the DW1 (contesting defendant) has stated in evidence that he has no document to show that the other defendants had surrendered their tenancy right or that they have given any no objection to the contesting defendant. The learned Trial Court also noted in its judgment that the said DW1 has stated in his evidence that he along with the other defendants had inherited the tenancy right in equal shares after the demise of the said Dulal Chandra. The learned Trial Court came to the conclusion that there is no material on record to show that the other defendants (i.e. other than the defendant No.3) had surrendered or relinquished their tenancy right in favour of the contesting defendant No.3. The learned Trial Court found that the contesting defendant has failed to prove that he is the only tenant under the 5 plaintiff after the demise of the original tenant. The learned Trial Court found that after the death of the said Dulal Chandra his heirs succeeded to the tenancy as joint tenants and the notice to one of such joint tenants is sufficient and effective to terminate the tenancy but it must be addressed to all. It will appear from the Trial Court's judgment itself that it was the defendant Nos' 3 case that notice was served upon the defendant No.1 only who is the mother of the defendant No.3 but defendant No. 3 was the only person who was entitled to such notice under Section 106 of the Transfer of Property Act. The learned Trial Court also found from the evidence of DW 3 (that is, the defendant No.1) that the two sons of the defendant No.1 including the defendant No.3 did not provide any maintenance to their mother (defendant No.1) and she has no relation with her two sons. The learned Trial Court came to the conclusion that the claim of the defendant No.3 that he is entitled to get the notice is not maintainable. On examining Ext.5 the learned Trial Court found that the said notice was addressed to all and it was sent to the address of the defendant No.1 who received the said notice. It further appears from the judgment of the learned Trial Court that the said defendant No.1 stated that she did not claim tenancy and she has no objection if the plaintiff obtains a decree of eviction in respect of the suit property. The learned Trial Court came to the conclusion that the notice under Section 106 T.P. Act which was served upon the defendants is sufficient and it is also valid and legal.
The learned Lower Appellate Court in its judgment has observed that at the time of final hearing of the title appeal the defendant No.3/appellant did not at all press any other grounds taken in the memorandum of appeal, but only pressed the question of legality and validity of the notice to quit. The learned Lower Appellate Court found that the defendant 6 No.3 failed to produce even a single scrap of paper to show that he alone became the sole tenant in respect of the suit premises after the death of Dulal Chandra. The learned Lower Appellate Court also found that neither the defendant No.3/appellant nor the other defendants ever showed their earnest desire to tender rent in favour of the plaintiff nor there is anything on record to show that the other defendants, (that is, other than defendant No.3) had ever expressed their willingness to surrender (their joint tenancy right) at any point of time. There is also nothing on record to show that the defendant No.3 himself had done anything to establish himself to be acting on behalf of all the joint tenants to become entitled to be served with a notice to quit. The learned Lower Appellate Court also found that the notice to quit (Ext.5) was addressed to all the heirs and legal representatives of the deceased original tenant and the same was served upon one of such heirs and legal representatives of the deceased original tenant and after the death of Dulal Chandra the defendants became joint tenants in respect of the suit premises under the plaintiff. The learned Lower Appellate Court found that the plaintiff did nothing wrong in serving the notice which was addressed to all the joint tenants, upon the senior living member of the family of the deceased original tenant. The learned Lower Appellate Court found that there is no scope to hold that the defendant No.3 was also entitled to be served with a notice to quit in his individual capacity. The learned Lower Appellate Court came to the conclusion that the judgment and decree passed by the learned Trial Court do not suffer from any illegality, material irregularity and impropriety.
The defendant No.3/appellant, challenging the impugned judgment and decree passed by the learned Lower Appellate Court, has filed the instant second appeal. 7
The instant second appeal was admitted for the hearing on the following substantial questions of law:
"(a) Whether the learned Courts below committed substantive error of law in passing a decree for eviction notwithstanding the fact that the notice to quit in terms of Section 106 of Transfer of Property Act was sent to one of the tenants in common and was served upon one of such tenants.
(b) Whether the learned Courts below committed substantive error of law in holding that appellants are joint tenants by totally over looking the decision of the Supreme Court in the case of Boddu Venkata Krishna Rao & Ors. -Vs- Boddu Satyavathi & Ors. Reported in AIR 1968, S.C. 751 where it has been specifically held that on the death of a Hindu tenant all his heirs inherit the property as tenant-in-common and not as joint tenants.
(c) Whether the learned Court below committed substantive error of law in holding that notice addressed to all but sent to only one of the tenants was sufficient to terminate the tenancy.
(d) Whether the learned Court below committed substantive error of law in passing a decree for recovery of arrear of rent for a period beyond three years notwithstanding the fact that even no issue was framed as to whether the plaintiff should be entitled to get such arrears of rent."
Having heard the learned Advocates for the respective parties it appeared to this Court that the dispute is with regard to the question as to whether, on the death of the said Dulal Chandra, his heirs, that is, the defendants succeeded to the tenancy as joint tenants or tenants-in-common and whether the notice under Section 106 of the Transfer of Property 8 Act addressed to all the heirs of the said Dulal Chandra but served upon the defendant No.1 (mother of the defendant No.3) only was a valid notice and as to whether such service of notice can be treated to be a valid one. Another dispute between the parties is with regard to the question as to whether or not a new contract of tenancy was created between the plaintiff and the defendant No.3 only after the death of the said Dulal Chandra. The only point that was pressed on behalf of the defendant No.3 before the learned Lower Appellate Court has already been indicated above, that is, with regard to the question of legality and validity of the notice to quit. The learned Advocate appearing on behalf of the defendant No.3/appellant lays emphasis on the evidence of the P.W.1 where he has stated that the defendant No.3 mainly along with the other defendants carries on the business, the defendant No.2 is in the military service and the defendant Nos. 4 to 6 are living in their respective in-laws' house.
The learned Advocate for the defendant No.3/appellant submitted that the evidence on record would show that the defendant No.3 is in control of the 'dasakarma bhander' business after the demise of the said Dulal Chandra and only one notice to quit was sent by the plaintiff.
The said learned Advocate referred to Section 111(f) and (h) of the Transfer of Property Act, 1882 with regard to determination of lease. Section 111(f) stipulates that a lease of immovable property may be determined by implied surrender, and under Section 111(h) a lease determines on the expiry of, inter alia, the notice to quit duly given by one party to the other. Therefore, the notice to quit must be duly given by one party to the other. Section 106(4) of the said Act of 1882 was referred to by the said learned Advocate to 9 substantiate as to when can it be said that a notice has been duly given. Section 106(4) stipulates that every notice under Section 106(1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. The said learned Advocate also referred to the provisions of Section 27 of the General Clauses Act, 1897. By referring to the above provisions of law the said learned Advocate submitted that the notice to quit should have been sent to each of the defendants.
The said learned Advocate cited a decision reported at AIR 1973 Cal 339(Ajit Kumar Roy & Others -V- Sm.Satyabala Dutt & Others). In the said reports an Hon'ble Division Bench of this Court held that "except in the case of coparceners of a joint Hindu family governed by the Mitakshara School of Hindu Law, persons inheriting a property, take the same as tenants-in-common and not as joint tenants". The defendants in the said reports were heirs and legal representatives of the sole tenant who died. The Hon'ble Court held that such defendants inherited the monthly tenancy as tenants-in-common and not as joint tenants. The Hon'ble Court further held that the principle that a notice to quit addressed to all the tenants but served on one of them is sufficient, applies to the case of joint tenants as also to the case of tenants-in-common. In the said reported case the notice to quit was addressed to all the defendants but it was served on some of the defendants, and the Hon'ble Court held that such notice is sufficient and it is also legal and valid. 10
The said learned Advocate submitted that in the instant case the notice to quit was sent to the defendant No.1 only, and, accordingly, the said notice to quit is bad in law. He submitted that both the learned Courts below erred in holding that the defendants are joint tenants.
The said learned Advocate cited a decision reported at AIR 1977 Allahabad 38 (Ramesh Chand Bose -v- Gopeshwar Pd. Sharma) wherein the Hon'ble Court observed, inter alia, that in order to terminate the tenancy notice must be given to each of the tenants- in-common. It appears that the decision in Ramesh Chandra Bose's case (supra) was overruled in the decision reported in AIR 1989 SC 1470 (H.C. Pandey -V- G.C. Paul) wherein the Hon'ble Supreme Court was pleased to observe to the effect that on the death of the original tenant a single tenancy devolves upon the heirs of the original tenant and such heirs succeed to the tenancy as joint tenants. It appears from a perusal of the said reports that after the death of the original tenant a notice under Section 106 of the Transfer of Property Act was addressed and served upon the respondent in the said case and it was not served upon the other tenants. It further appears that the said respondent acted on behalf of other tenants, that he paid rent on behalf all and he accepted notice also on behalf of all. In such circumstances, the Hon'ble Supreme Court held that the notice which was served upon the said respondent was sufficient.
The said learned Advocate cited a decision reported at AIR 1990 SC 2053 ( Textile Association (India) Bombay Unit -V- Balmohan Gopal Kurup & another). In the said reports the facts were that after the death of the original tenant an eviction suit was filed against some of the heirs of the original tenant and the respondent (1) in the said case was 11 not impleaded as a party in the eviction suit. The Hon'ble Supreme Court was pleased to hold that the ex parte decree passed in such eviction suit be set aside and the heir of the original tenant who was left out of the eviction suit should be impleaded as a party to that suit and thereafter the said suit should proceed on merits. The appeal before the Hon'ble Supreme Court arose out of a suit filed by the said respondent (1) claiming that he was one of the tenants living in the premises at the time of death of his father Gopal Kurup and the ex parte decree obtained by the landlord was not binding upon him.
The said learned Advocate referred to the provisions of Section 19 of the Hindu Succession Act in support of his contention that upon the death of the original tenant, the heirs of such original tenant succeed to the tenancy as tenants-in-common.
The said learned Advocate cited a decision reported at 1998(1) CHN 521 (Amal Krishna Aditya -V- Ganesh Chandra Das) wherein the Hon'ble Court held that in the said case the heirs of the deceased tenant became tenants-in-common and not joint tenants. The Hon'ble Court further held that in case of tenants-in-common notice must be addressed to all the tenants-in-common but may be served upon one of such tenants and the same principle applies in case of joint tenancy i.e notice to quit may be served upon one of the joint tenants but it must be addressed to all in order to rope in the other joint tenants in the eviction suit. In the said reports the Hon'ble Court was pleased to find that the facts of the said case led to the conclusion that defendant in the suit concerned alone became the tenant after the death of his father and his other brothers, though not in writing but really speaking, had relinquished their rights as tenants in respect of the suit premises by their conduct and even if it is found that the facts do not prove any surrender of tenancy right, the doctrine of 12 representation would apply as it would lead to the conclusion that the defendant concerned represented the entire tenancy. The Hon'ble Court was pleased to consider, inter alia, the Kanji Manji's case (AIR 1963 SC 468), H.C. Pandey's case (AIR 1989 SC 1470) and also Textile Association's case (AIR 1990 SC 2053) in the said reports.
The said learned Advocate cited another decision reported at 2006(1) CHN 513 (Jaharlal Saha & Ors. -V- Pradip Saha & Ors.). It appears from the said reports that the only question that was involved in the said reports was whether in the absence of all the heirs of the deceased contractual tenant, a suit for eviction is maintainable by impleading some of such heirs. The Hon'ble Court in the said reports was unable to follow the decision in Amal Krishna Aditya's case (supra) so far it sought to lay down as a proposition of law that the doctrine of representation will save a suit filed by a Landlord to evict an heir of the deceased contractual tenant even if some of the heirs are not made parties. The Hon'ble Court in the said reports was also of the view that the decision in the said Kanji Manji's case "did not lay down any proposition of law that on the death of the contractual tenant his heirs inherit the tenancy as a joint tenant; on the other hand, the Supreme Court in the case of Boddu Vankata Krishna Rao & Ors. -Vs. Boddu Satyavathi & Ors. reported in AIR 1968 SC 751, ( a Bench consists of three Judges) has taken the view that on the death of a contractual tenant who is a Hindu, his heirs inherit as a tenant-in-common." The Hon'ble Court in the said reports followed the decision reported in Textile Association's case (supra). In the said reports the Hon'ble Court found that the notice of suit was not addressed to all the heirs but only against the defendants in the said case and as such notice was held to be invalid.
13
The said learned Advocate referred to evidence of DW3 where she stated that only the defendant No.3 is running the business and that she does not claim tenancy in the suit premises. The said learned Advocate submitted that the learned Courts below did not consider such evidence of D.W.3. He further submitted that there was implied surrender of their tenancy-right by the other heirs (i.e. other than defendant No.3) but notice to quit was served upon the defendant No.1 only and no notice was served upon the defendant No.3 and the said notice is invalid and bad in law.
The learned Advocate for the appellant cited a judgment reported at 1994 Supp (3) Supreme Court cases 76 (Pushpa Rani & Others -V- Bhagwanti Devi & Others) and referred to Paragraph 9 of the said reports. It appears that in the said reports it was found that after the death of the original tenant (Chaman Lal) it was his elder son (Sushil Kumar) alone who continued in occupation of and, was carrying on the business in, the premises concerned and in the circumstances of that case it was found that the other heirs must be held to have surrendered their rights to tenancy. Such implied surrender was inferred from the evidence as to the conduct of the other heirs. Thus, it appears that depending upon the circumstances of the case some of the heirs of original tenant are entitled to surrender their tenancy rights.
The said learned Advocate cited another decision reported at 2008(3) CHN 962 (Amar Nath Pramanick -V- Sanjib Das Gupta & Ors.). In the said reports an Hon'ble Division Bench of this Court was pleased to approve the view of the learned Trial Court that the suit for eviction was not maintainable in the absence of a valid notice to quit as it appeared from the facts of the case that no notice of eviction was given to some of the heirs 14 of the original tenant, and the heir of the deceased original tenant who was made the sole defendant in the suit for eviction took the plea that he was not the sole tenant on the death of his father and that he along with two other brothers had inherited the tenancy rights. The learned Advocate for the appellant challenged the notice of suit on the ground that the said notice was not sent to all the heirs of the deceased original tenant.
The learned Advocate for the appellant also submitted that no issue was framed by the learned Trial Court as to whether or not there was any arrear of rent payable by the defendants and yet the learned Trial Court granted a decree of arrear of rent in favour of the plaintiff/respondent.
The said learned Advocate submitted that the suit filed by the plaintiff/respondent was bad in law as no notice was sent to all the heirs of the original tenant, since deceased, that is, the defendants in the suit.
The learned Advocate appearing on behalf of the plaintiff/respondent submitted that the defendant No.3/appellant did not make out any case of implied surrender in the written statement but had pleaded that the said defendant No.3 became a direct tenant under the landlord on the basis of a certain oral agreement. He submitted that the defendant No.3/appellant, for the first time, is making out a case of implied surrender before this Court and that a different case was made out in the written statement before the learned Trial Court. The said learned Advocate submitted that the appellant has failed to prove his case of being the sole tenant under the plaintiff. He further submitted that in the instant case a notice of suit was addressed to all the heirs of the deceased original tenant and such heirs were made parties to the suit. He has also submitted that the defendants succeeded to single 15 tenancy and, therefore, one notice was required to be served. He also submitted that the decision of the said Amal Krishna Aditya's case (supra) that in the case of tenants-in- common the notice of suit must be addressed to all the tenants-in-common but it may be served upon one of such tenants has not been overruled and/or dissented in any judgment. He also referred to the Ajit Kumar Roy's case (supra) reported in AIR 1973 Cal 339 as already discussed above. The learned Advocate for the plaintiff/respondent also submitted that the argument made on behalf of the appellant with regard to the decree passed by the learned Trial Court for arrears of rent should not pose any difficulty as he has been instructed by his client that his client does not intend to pursue the claim of arrears of rent if it is found by this Court that the point with regard to the arrear of rent is the only ground on which this Court feels that the impugned judgment should be inferred with.
In the present case, it appears from Ext.5 series that the notice of suit was addressed to all the heirs of the deceased original tenant but the said notice was served upon the defendant No.1 only.
The learned Advocate for the appellant has argued, as already noted above, that the said notice should have been sent to all the heirs of the original tenant, since deceased, and since it was not done so in the instant case the said notice is invalid. From a perusal of the reported cases as already discussed above, it emerges that after the death of the original tenant if the landlord intends to bring a suit for eviction then in that event the notice of suit must be addressed to all the heirs of the deceased original tenant. In Jaharlal Saha's case (supra) and Amar Nath Pramanick's case (supra) it appears that the notice of suit was not addressed to all the heirs of the deceased original tenant. In Ramesh Chand Bose's case 16 (supra) the notice to quit concerned showed that the plaintiff had treated the defendant alone in the said case as the tenant and had sought to terminate the relationship of landlord and tenant between the plaintiff and the defendant and no attempt was made to give the notice to terminate the tenancy to other tenants-in-common in respect of the property in dispute. In Textile Association's case (supra) one of the heirs of the deceased original tenant was not made a party to the suit for eviction. In the facts of the present case, it appears that all the heirs of the deceased original tenant, namely, Dulal Chandra, have been made parties to the suit for eviction and the notice of suit was addressed to all such heirs of the said Dulal Chandra, since deceased, even though the same was served upon the defendant No.1 only. The expression that the notice of suit must be addressed to all the heirs of the original deceased tenant can be properly understood if the observations of the Hon'ble Division Bench in Ajit Kumar Roy's case are noted. The following portion of Paragraph 12 of the said reports may be looked into; "There is preponderance of judicial opinion that a notice must be addressed to all the tenants (See Rajoni Bibi V. Hafisonnessa Bibi, (1990) 4. Cal WN 572; Bejoy Chand Mahatab V. Kali Prasanna Seal, (1925) 29 Cal WN 620 = (AIR 1925 Cal 752); Bodardoja V. Ajjijuddin Sircar, ILR 57 Cal 10 = (AIR 1929 Cal 651) . In our view the intention to bind the party must appear from the notice itself. Unless the name of a tenant appears in the notice it cannot be said that he is intended to be bound by the notice. Therefore, the notice should contain the names of all the tenants so as to bind them all. In other words, the notice should be addressed to all the tenants. But the service of the notice is not required to be effected on all the tenants. It would be sufficient if the notice is served on one of the tenants, for, under the Privy Council decision in Harihar Banerji's case 17 AIR 1918 P.C. 102, service of the notice on one of the joint tenants is prima facie evidence that it has reached the other tenants." From the said passage, quoted above, it will appear that the intention to bind the party must appear from the notice itself and that if the name of the tenant appears in the notice such tenant is intended to be bound by the notice and for the purpose of binding all the tenants the names of such tenants should appear in the notice and even if such notice is not sent to all such tenants-in-common but served upon any one of such tenants-in-common it can be said that the notice has been addressed to all the tenants- in-common. It does not appear from any of the decisions cited at the Bar that the requirement of sending the notice to each of the heirs of the deceased original tenant is required, as it has been held in some of the decisions discussed above that service of notice upon one of such heirs of the deceased original tenant in connection with an eviction suit would be sufficient but all such heirs are required to be made parties to the suit for eviction unless there is a case of implied surrender. If sending of the notice of suit to each of the heirs of the deceased original tenant had been mandatory then it may be difficult to lay down the principle that service of such notice upon one of the heirs of the deceased original tenant would be sufficient. In other words, if service upon one of the heirs of the deceased original tenant is sufficient then the question of sending notice of suit to all the heirs of the deceased original tenant would become a futile exercise. It appears from the said Ajit Kumar Roy's case that one need not look beyond the notice of suit and if the names of all the tenants appear in the notice itself then one can come to the conclusion that it has been addressed to all such tenants irrespective of the fact whether such notice has been really sent to all the tenants or not but subject to the condition that one of such tenants must be 18 served with such notice. In the present case, it appears that the notice of suit was addressed to all the heirs and legal representatives of the original tenant, since deceased, and all such heirs have been made parties in the eviction suit and defendant No.1 (one of such heirs) has been served with the said notice of suit. Thus, this Court finds that the notice of suit which was served upon the defendant No.1 is a legal and valid notice and such notice has been served upon the defendant No.1. Thus, the suit is not bad in law on the ground of such notice. The learned Advocate for the plaintiff/respondent did not dispute the fact that the defendants in the suit are tenants-in-common and not joint tenants but the said learned Advocate submitted that nothing turns on the finding made by the learned Courts below in this regard in the facts of the present case. This Court is of the view, in the facts and circumstances of the instant case, that the defendants have succeeded to the tenancy of the original tenant, since deceased, as tenants-in-common.
The learned Advocate has submitted that there is no material on record which may show that the defendants (other than the defendant No.3) surrendered and/or relinquished their tenancy right in favour of the contesting defendant, and the contesting defendant has failed to prove that he is the only tenant under the plaintiff. It is worthwhile to note that the learned Lower Appellate Court has observed in the impugned judgment that at the time of hearing of the title appeal the defendant No.3/appellant did not press any other ground taken in the memorandum of appeal (in the title appeal) but only pressed the question of legality and validity of the notice to quit. The learned Lower Appellate Court did not upset the finding of the learned Trial Court that there is no material on record to show that the defendants (other than the defendant No.3) had surrendered and/or relinquished their 19 tenancy right in favour of the contesting defendant. This Court in a second appeal is not inclined to interfere with such finding of fact.
The learned Advocate for the appellant has rightly argued that no issue was framed by the learned Trial Court with regard to the allegation of arrears of rent and the learned Trial Court wrongly granted a decree in favour of the plaintiff in respect of the alleged arrear of rent. That part of the decree is required to be set aside.
In view of the discussions made above, the present second appeal is disposed of by affirming the judgments and decrees passed by the learned Courts below subject to the modification that the decree with regard to arrear of rent granted by the learned Trial Court and affirmed by the learned Lower Appellate Court is set aside.
There will, however, be no order as to costs.
Urgent Certified Xerox copy of this Judgment, if applied for, shall be given to the parties on compliance of necessary formalities.
(TAPAN KUMAR DUTT J.)