- (1.) THE instant appeal has been preferred against a judgement and decree dated 25.03.2008 passed by Sri B. Das, learned A.D.J., Alipore in appeal No. 236 of 2007 thereby affirming the judgement and decree dated 29.06.2007 passed by the learned Civil Judge (Junior Division), First Court at Alipore.
(2.) THE thumbnails sketch of the plaintiff's case is as follows :- Plaintiff Smt. Bani Bhadra is the owner of the suit premises. She acquires a property by way of partition with her co-sharer on the strength of registered deed of partition dated 05.09.1981. Defendant No. 1 Sri Sankar Kundu was a monthly tenant in respect of the suit premises at a monthly rental of Rs. 135 payable according to English Calendar month. It is the plaintiffs specific case that the defendant is a habitual defaulter in payment of rent in respect of the suit premises from November 1982 onwards. It is further alleged that the defendant Sri Sankar Kundu sublet or assigned the suit premises to defendant No. 2 Sri Nani Kundu without any written / verbal consent of the plaintiff. Defendant No. 1 was not residing in the suit premises and he shifted to a different place after subletting the tenanted portion to Sri Nani Kundu. THE tenancy of the defendant No. 1 was terminated by way of notice of ejectment under Section 13 of W.B.P.T. Act, 1956. Plaintiff Smt. Bhadra required the suit premises for her own use and occupation as she has no other suitable alternative accommodation. THE defendant refused to vacate the suit premises in spite of receipt of the notice. Hence the suit. Defendant contested the suit by filing a written statement, inter alia, deny all the material allegations made in the plaint. The defendant/ appellant denies the ownership of the respondent in respect of the suit premises. The contention of the appellant is that he himself along with one Kartick Chandra Kundu was the real tenant and the defendant No. 1 was the benamdar. It is the specific plea of the appellant/defendant since the inception of the tenancy defendant along with his brother Kartick lived in the suit premises and paid rents though the tenancy stood in the name of the defendant No. 1 with the knowledge and consent of the erstwhile landlord Sri Anil Bhadra. The defendant categorically denies the plaintiff's claim for reasonable requirement of the suit premises. Hence the suit merits dismissal. The instant suit was contested before the Civil Judge (Junior Division), First Court at Alipore both party adduced evidence and after hearing both side and after conclusion of the trial learned Trial Court decreed the suit and directed the defendant/appellant to vacate the suit premises within 60 days from the date of passing of the judgment.
(3.) BEING aggrieved by and dissatisfied with the judgement of the learned Civil Judge (Junior Division), first Court at Alipore defendant/ appellant being a tenant preferred an appeal before the learned District Judge, Alipore same was transferred to the A.D.J. (16th Court) Alipore and learned A.D.J, after hearing both side came to a finding that appellant/ defendant is a sub-tenant in respect of the suit premises. The notice to quit and vacate was duly served upon the defendant. Plaintiff/respondent who was occupying a rented house at Konnagar reasonably required the suit premises for her personal use and occupation and as a result learned A.D.J. (16th Court) Alipore dismiss the appeal on contest but without cost on 25.03.2008. Being aggrieved by and dissatisfied with the finding of the learned A.D.J., Alipore the defendant preferred the present second appeal before this Court. Appeal was admitted and it was decided the instant appeal be heard on the following substantial question of law : 1) Whether the learned Court below went beyond the jurisdiction in any of the finding of sub-tenancy had been holding Kartick Kundu and Nani Gopal Kundu as sub-tenants in a proceeding under Section 17(2) of the West Bengal Premises Tenancy Act and without holding the regular trial on evidence. At the time of hearing it was submitted by the learned Counsel appearing for the appellant in addition to the substantial question of law framed by the Hon'ble Court in admitting instant appeal the following further ground may be formulated and learned Counsel for the respondent in his usual fairness did not oppose the submission made by learned Senior Counsel for the appellant Mr. S.P. Roy Chowdhury. Thus the following grounds are being formulated:- i) Whether the Courts below committed a substantial error of law in deciding the question of reasonable requirement without adhearing to or applying the established legal test. ii) Whether the Courts below committed substantial error of law in holding sub-tenancy without deciding the questions of intention, payment of consideration and exclusive possession etc. iii) Whether the Courts below committed a substantial error of law in not holding that the suit is not maintainable in its present form and further that the same is not barred on account of defect of parties. ;