Decided on September 11,1970

Manju Bala Das And Ors. Appellant
Prodosh Ranjan Das And Anr. Respondents


M.C. Pathak, J. - (1.) THIS is an appeal from the judgment and decree of the learned Subordinate Judge, Cachar. The Plaintiff's case is that they are the jotedars in respect of the first schedule land and owners of the house standing on the second schedule land, which is included in the first schedule land. The Defendant No. 1 took settlement of a room of the house described in schedule 2 for one year from 21st Jaistha, 1359 B. S. to 21st Jaistha, 1360 B. S. agreeing to pay rent at Rs. 34/ - per month. The settlement was taken from Barada Charan Purkayastha, predecessor in interest of the Plaintiffs. After the death of Barada Charan Purkayastha the Defendant No. 1 continued to occupy the house paying the rent at the same rate. The Defendant No. 1 defaulted in payment of rent since after December, 1962 and therefore Money Suit No. 350 of 1963 was filed for rent and compensation against him. The Defendant No. 1 used to pay rent according to English calendar month for the sake of convenience. The Defendant No. 1 without consent and permission of the Plaintiffs allowed the Defendant No. 2 to occupy the house. The Plaintiffs required the house in question for their own use and occupation and therefore they served a notice on the Defendants on 15 -1 -1964 requiring them to vacate the suit house after expiry of 21st Palgoon 1370 B. S. corresponding to 5 -3 -1964. The Defendants did not vacate the suit premises in spite of receipt of the notice. Hence the suit for ejectment.
(2.) THE Defendants filed a joint written statement. They denied that Defendant No. 2 was a sub -lessee under the Defendant No. 1. Their contention was that Defendant No. 2 through the mediation of Dwijendra Nath Sarma obtained settlement of the suit house from Barada Charan Purkayastha, who was the karta of the joint family, at a monthly rent of Rs. 34/ - from 1st Jaistha 1359 B. S. In Bhadra 1359 B. S. the Plaintiff No. 2 pressed for executing a Kerayanama and so the Defendant No. 1 executed the Kerayanama and got it registered on behalf of both the Defendants. The rent was paid according to English calendar month. In 1955 the rate of rent was reduced to Rs. 25/ - per month though in spite of protests the Plaintiffs continued to issue receipts for Rs. 34/ - per month. The Defendants denied that they were defaulters in payment of rents and did not admit that the Plaintiffs required the suit house for their bona fide necessity. They further contended that the suit was bad for non -joinder of parties and for want of legally valid notice. A number of issues were framed on the pleadings of the parties. The learned Munsiff on consideration of the evidence on record decreed the Plaintiffs suit. An appeal was preferred before the learned Subordinate Judge, who affirmed the judgment and decree of the learned Munsiff. The Defendants thereafter preferred Second Appeal No. 13 of 1966, in which the High Court remanded the appeal to the Subordinate Judge for disposal. After remand, the only point that was canvassed before the learned Subordinate Judge was that no legally valid notice terminating the tenancy was served on the Defendants. The learned Subordinate Judge considered the evidence on record, on this point and found that the notice of adjustment (Ext. 6) in the instant case did not conform to the requirements of the provisions of Section 106, Transfer of Property Act and in that view he held that the Plaintiffs' suit failed for want of service of a legally valid notice on the Defendant's terminating the tenancy. The Plaintiffs suit was thus dismissed.
(3.) TITLE Appeal No. 78/65 was finally disposed of by the learned Subordinate Judge on 13 -6 -67 and the present second appeal (S. A. 174/67) was filed on 2 -8 -1967. On 13 -5 -1969 when the case came up for hearing the Respondents' Advocate informed that Appellant No. 1 died on 1.1 -3 -1968. Thereafter a petition for setting aside the abatement of the appeal was filed on 14 -7 -1969 and the rule was issued on the petition on 21 -7 -1969. By order dated 21 -11 -1969 this Court ordered that the question of abatement would be heard along with the main appeal.;

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