Calcutta High Court (Appellete Side)
Uttam Koley vs Smt. Bidyyalata Santra & Ors on 21 February, 2022
21.02.2022
SL No.15
Court No.8
(gc)
SA 69 of 2020
Uttam Koley
Vs.
Smt. Bidyyalata Santra & Ors.
(Via Video Conference)
The appellant is not represented nor any
accommodation is prayed for on behalf of the appellant.
On the earlier occasion, the matter was adjourned on
the prayer of the learned Counsel appearing on behalf of
the appellant.
This second appeal is directed against the judgment
and order dated 18th May, 2017 passed by the learned
Civil Judge (Senior Division) 2nd Court, Howrah in Title
Appeal No.50 of 2013, affirming the judgment and decree
dated 28th February, 2013 passed by the learned Civil
Judge (Junior Division), 1st Court, Howrah in Title Suit
No.96 of 2011.
We have perused the grounds of second appeal and we
do not find that there is any substantial question of law is
involved on which the second appeal can be admitted.
The plaintiffs/respondents filed the suit for eviction,
khas possession and mesne profits. One Mohanta Kumar
Modak @ Santra was the original owner and occupier of
the suit properties. After his demise, it devolved upon the
plaintiffs as legal heirs and the plaintiffs became the
absolute owners and occupiers of the suit property
mentioned in the schedule of the plaint. The plaintiffs
alleged that the defendant/appellant is a monthly tenant
in respect of the suit property. The defendant was a
habitual defaulter in payment of rent since the month of
Falgun, 1409, B.S. The defendant was also guilty of
committing various acts of wastes and damages resulting
in material deterioration to the condition of the scheduled
property under his occupation and those acts are all
contrary to the provisions of clauses (m), (o) and (p) of
Section 108 of the Transfer of Property Act. The plaintiffs
also claimed reasonable requirement. The defendant
contested the said suit and relied upon one agreement of
8th February, 2003 and contended that after the demise of
Mohanta Kumar Modak @ Santra, his wife used to collect
rent from the defendant. Thereafter the plaintiff claiming
to be the legal heirs of said Mohanta Kumar Modak @
Santra, entered into one development agreement thereby
wishing to demolish the building including the suit
property and to let out the same to new tenant as such the
dispute arose between the plaintiff and defendant and also
with the other tenants. The plaintiffs created
inconvenience to the enjoyment of the suit property by the
defendant as tenant with a view to evict the defendant
without due process of law. The defendant also made a
complaint to several authorities as a result whereof a
meeting was held between the parties and one agreement
dated 8th February, 2003 was entered into by the
defendant with Swapan Kumar Santra and Ashok Kumar
Santra. But the plaintiffs refused to act in terms of the
said agreement. The defendant and other tenants were
compelled to construct the suit property out of their own
fund. The defendant has incurred expenses to the tune of
Rs.4,800/- for such construction. Moreover, the plaintiff
No.2 initiated a criminal case against the defendants and
other tenants. The defendant demanded the
reimbursement of the expenses as well as called upon the
plaintiffs to act in terms of the agreement dated 8th
February, 2003. However, the plaintiffs did not pay any
heed to such request. The defendant after surrendering
the old tenancy entered into an agreement on 8th
February, 2003 with Swapan Kumar Santra and by the
said agreement the defendant was given a fresh tenancy in
respect of the suit shop room at a monthly rental of
Rs.76/- payable according to Bengali calendar month. It
was on such agreement, the notice of eviction was
contended to be invalid. The parties adduced both oral
and documentary evidence before the Trial Court.
It is nobody's case that the provisions of the West
Bengal Premises Tenancy Act, 1997 would not apply in the
present context and the notice under Section 106 of the
Transfer of Property Act would suffice for filing the suit. In
the instant case, the plaintiffs had relied upon service of
notice of ejectment being Exhibit No.5 (series), the notice
is dated 21st July, 2010. The defendant has signed on the
A/D card, i.e., Exhibit No.5(a). In his cross-examination
dated 14th June, 2012, the defendant admitted the service
of notice of eviction. However, in the written statement, he
has denied the service of notice upon him. There is
nothing on record to show that the defendant was misled
by the said notice. Accordingly, the question of illegality of
the notice does not arise. It clearly conveys intention of
the landlord to terminate the tenancy. The learned Trial
Judge has correctly relied upon that the twin
requirements of Section 106 of the Transfer of Property Act
were fulfilled in the instant case, namely, (i) it should give
15 days' notice, (ii) expiring with the end of the month of
tenancy. In the instant suit the notice was sent on 21st
July, 2010 corresponding to 4th Shrabon, 1417 B.S and it
also expired with the end of the month of tenancy, i.e., last
day of Bhadra, 1417 B.S. So, it also gave more than 15
days notice to vacate. Though it is now not required to
give notice expiring with the month of tenancy under the
Transfer of Property Act, however, the plaintiffs have
complied with all the formalities. Moreover, the Trial
Court has correctly relied upon a Coordinate Bench
decision of this Court in Prasanta Ghosh & Another Vs.
Pushkar Kumar Ash & Others reported in 2006(2) CHN
277 while disposal of the appeal observed:-
"It is now well-settled that in a case where tenancy
is governed by the Transfer of Property Act, all that the
landlord is required to prove is that notice in terms of
Section 106 of the Transfer of Property Act has been
duly served upon the tenant/defendant.
Once, it is established that prior to institution of the
suit a valid notice in terms of Section 106 of the Act
was duly served upon the tenant/defendant, there was
no necessity for the Ld. Courts below to consider
whether the grounds mentioned in the plaint had really
existed. Therefore, all those findings on the grounds
mentioned in the plaint were superfluous."
In view of the clear finding by both the Courts and the
notice under Section 106 of the Transfer of Property Act
has been duly served upon the appellant/defendant
clearly conveying the intention that the tenancy would
come to an end and having fulfilled the twin requirements
of the said Section, we are of the opinion that no
substantial question of law is involved for which the
second appeal can be admitted.
Under such circumstances, the second appeal being
SA 69 of 2020 stands dismissed.
However, there shall be no order as to costs.
All parties shall act on the server copies of this order
duly downloaded from the official website of this Court.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
