SUBRATA TALUKDAR, J. - (1.) THE challenge thrown by the petitioner is to Order no.33 dated 28th August, 2008 passed by the Ld. Additional District and Sessions Court, Fast Track VI, Alipore in Title Appeal no.10 of 2006. The appellant in the said Appeal no.10 of 2006 was the defendant no.3 in Title Suit (for short T.S.) no.26 of 2004. The suit, as filed for eviction of tenant by the plaintiff under the West Bengal Premises Tenancy Act, 1956 (for short the 1956 Act) was on the ground of reasonable requirement.
(2.) THE plaintiffs, who were respondents in the said Appeal no.10 of 2006, claimed ownership over the suit property by purchase from one Sadananda Sen. It is not in dispute that one Haripada Ghosh was a contractual tenant under Sadananda Sen and, on the death of Haripada, the sons and wife of Haripada since became the tenants. Suit was filed by service of the notice under the 1956 Act and, in the said suit the sons and legal heirs were impleaded as party defendants. One of the legal heirs namely, Sri Bimalendu Ghosh, who is also the appellant in the said Title Appeal no.10 of 2006, in his capacity as a defendant in T.S. no.26 of 2004 claimed to be the sole defendant after the death of the original defendant, his father, Haripada. The said Bimalendu also pleaded that on the death of Haripada the tenancy devolved in the name of Satyendra, elder brother of Bimalendu and on the death of Satyendra upon implied surrender by the heirs of Satyendra the sole tenancy rested in favour of the said Bimalendu. The suit being decreed the said Bimalendu filed the said Title Appeal no.10 of 2006 as appellant. In the said Title Appeal the appellant filed applications for amendment of his written statement to the effect that on the death of Haripada on the 5th of January, 1956 the tenancy devolved upon his widow and five sons. Thereafter on the death of his widow, Nalini Bala on the 28th of January, 1956 the tenancy was inherited in common by all surviving sons, daughters and grandchildren. In his said amendment application Bimalendu therefore pleaded that all the aforesaid surviving legal heirs were necessary parties to the eviction suit and thereafter in this appeal.
(3.) THE ld. Fast Track Appellate Court posted both the amendment applications and the appeal for analogous hearing recognizing that the said Bimalendu for the first time during pendency of the appeal had taken the point that tenancy of the late Haripada Ghosh devolved in common upon all legal heirs and therefore the suit was liable to be challenged as non -maintainable on the ground of non -joinder of necessary parties. The second issue addressed by the ld. Fast Track Appellate Court was the provision for amendment under Order 6 Rule 17 of the Code of Civil Procedure (for short CPC). Ld. Advocate for the respondent plaintiff argued before the 1st Appellate Court that the amendment will result in withdrawal of the admission made by the said Bimalendu before the ld. Trial Court. The ld. 1st Appellate Court was however unable to persuade itself on the contentions advanced on behalf of the plaintiff -respondent that there was any admission on the part of the said Bimalendu with regard to the mode and manner of devolution of tenancy on himself alone. The Ld. 1st Appellate Court took notice of the fact that the said Bimalendu as DW1 had given evidence that he became absolute tenant on the death of his father, Haripada and, during cross - examination stated that tenancy was inherited in the year 1956 and never surrendered. However, the specific case made out in the plaint was that only the male heirs of Haripada inherited the tenancy excluding the other family heirs.;