Ashim Kumar Banerjee - (1.) THIS appeal would relate to a judgment and order of eviction that the appellant suffered before the City Civil Court. The facts, if brought within a narrow campus, would depict, one Sudhir Kumar Pal was a tenant in respect of the suit property. Sudhir Kumar Pal died in 1979 leaving him surviving his widow Bina Pani Pal. Bina Pani Pal also died in 1986. Bina Pani Pal had three sons Jagannath Pal, Chandi Charan Pal and Manick Pal. Jagannath Pal died in 1993. However, after the death of Bina Pani Pal, her sons left the premises. According to the landlord, they surrendered the tenancy. The appellant, Biswanath Pal was the nephew of Sudhir Kumar Pal, he claimed to be residing along with the family of Sudhir Kumar Pal. The plaintiff being the respondent herein, filed a suit for eviction against Biswanath Pal and one Jugal Kishore Pal, the brother of Sudhir Kumar Pal. Biswanath Pal along with Jugal Kishore contested the suit. During the pendency of the suit, Jugal Kishore Pal died, however, his heirs were never brought on record. The plaint would suggest, Bina Pani Pal was a tenant in respect of the premises in question. Since she died without having any heir residing with her, taking advantage of her loneliness, the defendant used to visit occasionally and after her death, they illegally occupied the suit premises without any authority and as such they should be evicted as trespasser. Biswanath Pal deposed, they were a part of the family. Sudhir Kumar Pal had two brothers being Ramkrishna Pal and Jugal Kishore Pal. Although the tenancy was taken in the name of Sudhir Kumar Pal, all three brothers were residing along with their family members in the tenanted premises. The others left from time to time. Biswanath Pal was residing along with his wife and daughter. Since he was a part of the family, he could not be termed as "trespasser". The Learned Judge disbelieved his deposition and decreed the suit. The plaintiff proved the tenancy through the counter foil of the rent receipts showing Bina Pani Pal as a tenant. The plaintiff denied the relationship of Biswanath Pal with Bina Pani Pal. The learned Judge was satisfied with the evidence of the plaintiff to the extent, the defendant had no right title to possess the suit property. Bina Pani Pal had an heir who also left the premises without claiming inheritance as to the tenancy. The learned Judge decreed the suit hence, this appeal that we heard on the above mentioned dates. CONTENTIONS
(2.) MR . Mahendra Prasad Gupta, learned Counsel argued at length. The main contention of the appellant was, the appellant was a part of the original family that took the tenancy in the name of one of their brothers Sudhir Kumar Pal. All the three brothers had been residing with their family members hence, after the death of Bina Pani Pal, Biswanath Pal was entitled to enjoy the tenancy being a part of the family. Mr. Gupta would strenuously contend, he would come within the definition of "tenant" as per Section 2(h) of the West Bengal Premises Tenancy Act 1956. Mr. Gupta would also raise the plea of abatement. According to him, the plaintiff filed the suit against both the defendants. One of the defendants died during the pendency of the suit. Having not applied for recording his death coupled with substitution of his heirs, the suit would abate not only against the deceased defendant but also against the other defendants. To support his contention, he would rely upon the following decisions: 1. Arunadoya Chakraborty and others Vs. Mahammad Ali and Others -reported in : All India Reporter 1928 Calcutta Page -138. 2. Hakir Mahamed Vs. Abdul Majid reported in : All India Reporter 1953 Calcutta Page -588. 3. The collector, Bellary Vs. Javali Govindappa alias Rindayya Firm by partner Surasetty Basappa (since deceased) and others reported in : All India Reporter 1954 Madras page -766.
(3.) BIRA Sethi Vs. Purusottam Misra reported in : All India Reporter 1963 Orissa Page -118.;