- (1.) This Second Appeal arises out of an affirmative concurrent finding of the fact for the eviction of the tenant from the premises of the landlord. At the time of admission of the Second Appeal, a Division Bench of this Court held on contest that the grounds Nos. II, III, VI, X and XI are the points for hearing of the Second Appeal. At the time of hearing of this appeal, I find the arguments are mainly confined in respect of spliting up the tenancy, reasonable requirement and default, if any. Although there is no bar under Section 100 of the Code of Civil Procedure in formulating the points even at the stage of hearing but normally the Court proceeds on the formulated points at the time of admission of the appeal by the respective Division Benches of this Court. In any event, one should not be debarred from being heard although it is vehemently opposed by Mr. Molay Kr. Basu, learned Senior Counsel appearing for the plaintiff/respondent, that when on contest the point in respect of default has been turned down by the Division Bench at the time of admission of the appeal, such point cannot be agitated.
(2.) Mr. S.S.Roy, learned Counsel appearing for the defendant/appellant contended before this Court that there is a valuable point of default to be urged herein. Such valuable point of default, if any, arose after the institution of the suit but not prior thereto. In any event, since no challan has been produced before this Court as yet in respect of any deposit, the verbal submission cannot be accepted by this Court in respect of drawing up an inference about the payment of rent. Therefore, such part of the concurrent finding cannot be entered into. The lower appellate Court was very much specific on the point which is as follows :- "On perusal of the record and evidence, l find the D.W.-1 admitted that the rent has been paid before the Rent Controller in the names of both Mallika Dey and Amritabala Dey but no such document produced in the Court which may show that the observation of the learned Court below would be erroneous. Not a single paper produced in the Court showing payment of current rent by the appellant/defendant as there is admission on the part of the defendant/appellant in respect of payment of rent uptodate but no such paper filed. The defendant/appellant has no scope to get any advantage only on the basis of her oral evidence. Accordingly, I also hold the same view with that of the learned Court below that the appellant/defendant was a defaulter," Therefore, I do not want to enter into such controversy at all.
(3.) The other two points are co-related with each other in respect of reasonings of the right of the tenancy. Mr. Roy, learned Counsel for the defendant/ appellant, specifically contended before this Court that by virtue of two purchase deeds i.e. one Monika Dey and another Amritabala Dey purchased a portion of the premises but the tenant was in occupation of the premises prior to the purchase. A letter of attornment being Exts. 1 and 1(a) do not speak that the portion of the premises in question is divided amongst the'purchasers, Smt. Monika Dey and Smt. Amritabala Dey. Mr. Roy, learned Counsel forthe appellant, relied upon a judgment of the Supreme Court in the case of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, reported in AIR 1997 SC 998 to say that Section 37 of the TRANSFER OF PROPERTY ACT, 1882 contemplates a transfer as a result of which the property is divided into several shares and each share comes to be vested separately in each owner. In such a situation, each of the several owners will be entitled to his share of the rent or benefit of any other obligation relating to the property as a whole. But before the tenant can be required to split up the rent and pay separately to each owner, he has to be informed of the transfer by a notice which, by itself, will be sufficient to convert the single obligation into several obligations and he will be liable to pay rent to each co-sharer separately. It also appears from there that there is no right of the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors orthey would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. I cannot understand how this judgment will help the case of the appellant herein. Possibly, the appellant wanted to say that as because the letter of attornment speaks that he became the tenant in respect of the tenanted portion under them. Therefore, there is no question of known apportionment of the property to follow the principle as laid down by the Supreme Court as above. But it is crystal clear from the letter of attronment which portion is sold to whom. It is clear that by two conveyances, the original seller sold the northern portion of the premises to Smt. Monika Dey and the southern portion of the premises to Smt. Amritabalapey. If it is so, it is known fact to the appellant-tenant herein about the sale of apportioned portion of the premises. That apart, the only reliance cannot be given to the letter of attomment because the sale is not under the control of the purchaser. Therefore, two tests of evidence whether the deed of purchase or plaint schedule and the appropriate evidence is in a row parallel to each other. I find from the analysis of the evidence as well as facts and law by the Court of first instance and also the lower appellate Court that there is no mistake committed by the Court in coming to a conclusion in connection thereto. Therefore, when both the Courts came to an affirmative conclusion in respect of the right of occupation of the plaintiff-land-lady in the apportion tenanted portion of the tenant, I do not find any reason to interfere with the same. That apart, the Court of first instance relied upon a judgment reported in on that score to come to an appropriate conclusion. The Court held that the plaintiffs suit is maintainable under Section 109 of the Transfer of Property Act and in view of the decision of the Supreme Court in such circumstances, no second thought can be given in respect thereto. As per two portions sold by two Deed of Conveyances to two individuals and according to me each individual has a right to take appropriate step in accordance with law for the purpose of ejectment of a tenant from the respective portion of the premises. Not only the law is clear but also factually it appears to this Court that such sale was known to the tenant not apportionment was identical everywhere either in the sale deed or in the plaint schedule or in the evidence. Therefore, this Court cannot go against such established concurrent finding of fact.;