Ajit Kumar Kotal Vs. Sailesh Kumar Bose and anr. - Court Judgment

Excerpt:
- v.k. gupta, j.1. this civil first appeal is directed against the judgment and decree dated 31st august, 1982 and 4th september, 1982 respectively passed by the learned judge, 2nd bench, city civil court, calcutte in ejectment suit no. 1482 of 1975.2. the respondent no. 1 had filed a suit for ejectment against the appellant and the respondent no. 2 with respect to a property comprising of five rooms, kitchen, bath and privy situated in the premises no. 39, dr. jagabandhu lane, calcutta-12. the suit was filed by the plaintiff/landlord on a number of grounds available to it under section 13 of the west bengal premises tenancy act, 1956, including the grounds of reasonable requirement, re-building and sub-letting. ultimately, however, the plaintiff-landlord gave up the other grounds and confined his suit only to the ground of subletting. the following four issues were framed by the trial court for adjudication in the suit:(1) has the defendant sublet portion of the suit premises without the plaintiff's consent in writing? (2) does the plaintiff reasonably require the suit premises for his own use and occupation? (3) was the notice served? is the notice valid and sufficient? (4) is the plaintiff entitled to get a decree of ejectment and mense profit? 3. the finding of the trial court with regard to the first issue which was the main issue for trial between the parties, was that the appellant hadin fact sublet a portion of the house in favour of the respondent no. 2, namely shri mahadeb dolul. this finding was based on the evidence led by the plaintiff/landlord in the course of trial, including his own statement, the statements of the witnesses produced on his behalf.4. learned advocate appearing for the appellant, while challenging the judgment and decree of the trial court, has assailed the same on a number of grounds. the first ground relates to the defect in the notice served upon the appellant by the respondent no. 1. it is contended that the plaintiff/ landlord had served a notice earlier, i.e. in june, 1973. it did not act upon the same and did not choose to file any suit against the appellant. instead, a fresh notice was sent on 25th september, 1974, the service whereof was refused by the appellant the contention is that unless the first notice was canceled and rescinded, the tenancy between the parties stood terminated and therefore the issuance of the second notice was defective. the suit based on such notice could not be called to be maintainable in the eyes of law. the other ground relates to the sufficiency of evidence with regard to the issues relating to the subletting. it is argued that the learned court below erred in returning the finding on the issue no. 1 in favour of the plaintiff/landlord because enough evidence was not produced by the plaintiff to properly prove the issue no. 1.5. in so far as the question relating to the defect in second notice is concerned, the point is no more res integra in view of the judgment of the supreme court in the case of v. dhanapal chetttor v. yesodai ammal reported in : [1980]1scr334 wherein their lordships have clearly set at rest the controversy regarding the service of a notice under section 106 of the transfer of property act. in that judgment it has clearly been held that in order to get a decree or order for eviction against the tenant under any state rent control act it is not necessary to give notice under the transfer of property act the determination of a lease in accordance with the transfer of property act has been found unnecessary and a mere surplusage case, the landlord cannot get eviction decree against the tenant even after such determination of the tenancy. since the tenant continues to be so even thereafter, making out a case under the rent act for eviction of the tenant by itself is sufficient and thus it is not obligatory to found the proceedings before the court under the relevant state act on the basis of the determination of the lease by issue of a notice in accordance with section 106 of the transfer of property act the entire argument of the learned advocate for the appellant revolved round the question of legality of the second notice with reference to the service of the first notice since the learned advocate for the appellant contended that the determination of the tenancy by the first notice was subject which, not having been acted upon soon thereafter, deprived the landlord of filing a suit on the basis of the second notice. all these issues regarding the determination of tenancy have paled into insignificance because of the proposition of law, referred hereinabove, as laid down by the supreme court in v, dhanapal chettiar v. yesodal ammal (supra). in the present case, the service of notice upon the appellant on behalf of the plaintiff/landlord was not any prerequisite in so far as section 106 of the transfer of property act was concerned. the only pre-requlslte, if at all, would be found in section 13(6) of the west bengal premises tenancy act, 1956 which cast an obligation upon every intending plaintiff landlord to serve a notice of one month expiring with month of the tenancy about its intention of filing suit against the tenant if the suitwas based on any ground mentioned in sub-section (1) of section 13, excepting the grounds mentioned in clauses (j) and (k) of that sub-section. this is nobody's case that the notice sent by the plaintiff/landlord on 25th september, 1974 did not squarely meet with the aforesaid statutory requirement. the appellant has not brought to our notice any defect in the said notice dated 25th september, 1974 in so far as section 13(6) is concerned.6. the learned trial court has clearly found that the refusal to accept the service of the notice dated 25th september, 1974 was deliberate in so far as the appellant was concerned. the evidence as was adduced in the trial court clearly also established that the postman made attempts before it recorded the endorsement 'refused'. we have no reason to take a different view. we confirm the finding.7. coming to the question about the subletting, we find that the learned court below has relied upon the evidence adduced during the trial whereby enough material was made available to link the appellant with the charge of subletting a part of the property. voters' list was produced by p.w. 3 amar nath banerjee who was an employee of the election department. in this voters' list in respect of the year 1975 relating to the premises in question, the names of mahadeb dolul, his wife champa rani dolul, his children pradlp debnath and joystna debnath do appear. another witness p.w. 2 kanallal ghosh, public relation inspector in the bowbazar post office deposed about the registered letter addressed to mahadeb dolul having been received by him at the address of the premises in question, i.e. no. 39, dr. jagabandhu lane, calcutta on 6th february, 1982. p.w. 4 pratap chandra kundu, a clerk of muchipara ration office deposed that ration card stood in the name of mahadeb dolut and the members of the family and the address of the other respondent was no. 39, dr. jagabandu lane. the aforesaid evidence conclusively and without any doubt proved the allegations of the plaintiff/landlord that the appellant had sublet a part of the house to mahadeb dolul. this was not a case based on any inferential finding. it was a clear case of direct evidence in so far as the question of subletting was concerned. the onus in so far as the plaintiff/landlord is concerned was clearly discharged by him by leading aforesaid evidence. thereafter, the onus shifted upon the defendant/appellant to rebut the aforesaid evidence. we find that no rebuttal evidence was led as such since nothing was brought before the notice of the court to suggest that evidence led by the plaintiff was either not cogent or did not inspire the confidence of the court. even mahadeb dolul, who was a defendant in the suit, did not appear as a witness nor did the appellant take any step to produce him as his own witness. he was perhaps the best person to have refutted or rebutted the evidence produced by the plaintiff unking him directly with the subletting of the premises in question.8. for the foregoing reasons therefore, we hold that the finding of the trial court with regard to the issue no. 1 was based on proper appreciation of the evidence. we affirm the finding.in the result, the appeal falls. it is dismissed. the judgment and decree impugned in the appeal are upheld. no order is made as to cost.d. p. kundu, j.i agree.9. appeal dismissed