Joytosh Banerjee, J. - (1.) The instant appeal from appellate decree is directed against the judgement dated 20.7.1981 and the decree there of passed in T.A. 333 of 1980 by the District Judge. Hooghly, By which the learned appellate Court below affirmed the judgement dated 29th September' 1980 passed by the Munsif, 1st Court, Hooghly in t.s. 153 of 1979, through which learned trial Court dismissed the suit.
(2.) The plaintiff/appellant filed the suit for ejectment of the defendants and also for mesne profits, on the allegations that the defendant No. 1 was a monthly tenant under him in resect of the suit premises at a rental of Rs. 30/- according to Bengali calendar month. Plaintiff reasonably required the suit premises, a shop room for using the same as a kitchen by his younger son. That the defendant No. 1 defaulted in payment of rent since Aswin 1385 B.S. and also that he sublet the suit premises to defendant No. 2 without the consent of the plaintiff, that in the evening many persons of questionable character sit in suit shop room and their conduct amounted to annoyance to the ladies of the plaintiff's family and that the defendant No. 1 made alterations in the suit premises contrary to the provisions of clauses m, 0 and p of Section 108 of the Transfer of Property Act. The plaintiff filed the suit after terminating the tenancy by a notice and asking defendant No. 1 to vacate the suit premises on the expiry of Jaistha 1386 B.S. The defendant received the notice but failed to vacate. In that background, the plaintiff was constrained to file the suit. The defendants in their joint written statement alleged that the defendant No. 1 tendered rent to the plaintiff in due time but the plaintiff refused to accept the same and thereafter defendant No. 1 deposited the rent with the Rent Controller and after the filing of the suit by the plaintiff deposited the arrear rent in the Court within time. The defendants denied that plaintiff reasonably required the suit premises for his own occupation or that the defendant No. 1 sublet the suit premises to the defendant No. 2 or that some persons of questionable character sit in the suit premises and their conduct amounted to annoyance to the ladies of the plaintiff's family or the defendant No. 1 made alteration in the suit premises without the consent of the plaintiff According to the defendants, the defendant No. 2 was a partner of the defendant No. 1 in respect of the business carried on in the suit premises. The defendants also challenged the legality and validity of the notice to quit. The defendants also challenged the legality and validity of the notice to quit, The defendants also challenged the legality and validity of the notice to quit. The learned judge of the appellate Court below in the impugned judgment found that plaintiff through his evidence as P.W.1 wanted to allege that his family consisted of himself, his wife, his elder son, elder son's wife and their children, his younger son's wife and their children and his married daughter and her children. According to the defendant No. 1 who examined himself as D.W. 1, the plaintiff's married daughter resided in her husband's house. The plaintiff also admitted in his cross-examination that his daughter's husband lived at Guptipara where he had land and house. The learned judge observed that the plaintiff did not assign any reason as to why after the marriage his daughter with children would live in his family. The learned judge thereafter proceeded to consider the question of requirement of each unit of plaintiff's family. He noted that the plaintiff's claimed in his evidence that although his sons lived with him in the same house but each of them required a separate kitchen as they were separate in mess. He considered the question with the report of the commissioner and found that there were two kitchen rooms in the plaintiff's house besides there was one covered brandh. Commissioner's report further noted that there was a stair case room measuring about 10 ft x 6 ft. The plaintiff as P.W.1 stated in his evidence that the suit room was not fit for residence. The learned judge pointed out that the plaintiff did not claim in his evidence that the said staircase room was not fit for being used as a kitchen and therefore, the learned judge held that he did not se any reason why this staircase room could not be used by the younger son of the plaintiff as a kitchen. In this way, the learned judge found that plaintiff failed to establish that he required the suit shop room for using the same as a kitchen of his younger son. Regarding the allegation of subletting, the learned judge relied on Ext. C, the partnership deed which showed that defendant No. 2 was a partner of the defendant No. 1 in the business. The learned judge noted that the plaintiff in his evidence stated the business in the suit premises was run by the defendant No. 2's son. But in his cross-examination, the plaintiff admitted that the defendant No. 2 also attended the business in the evening. From the aforesaid facts and circumstances the learned judge came to the conclusion that the business in the suit premises was also conducted by the defendant No. 1 and the learned judge came to his ultimate finding that the plaintiff was not in a position to establish by pointing out that there could not be subletting unless the lessee parted with legal possession Regarding the allegation that the suit shop room was used by some undesirable men during evening causing annoyance to the ladies of the plaintiff did not examine any of the lady members of his family to prove that the conduct of the persons who sat in the suit premises in the evening time caused any annoyance to the ladies of the family. That apart in the cross-examination, the plaintiff stated that he could not say aiming at whom those persons cut jokes etc. Regarding the allegation that the defendant No. 1 made alterations in the suit premises contrary to the provisions of clauses m, o and p of Section 108 of Transfer of property Act the learned judge found after examining the evidence that the specific allegation in this respect made by the plaintiff was that the defendant No. 1 fixed up a door in between the suit room and adjoining shed and he also removed a door in the eastern wall of the suit premises and closed its gaps with bricks.
(3.) The learned Judge noted in the judgment that according to the case of the plaintiff all these alterations were done without his consent. On the other hand, the specific case of the defendant No. 1 was that about 7 years back there was a theft in the shop room and to protect his shop room against such theft he made the alterations with the consent of the plaintiff. The learned Judge noted in his judgment that the plaintiff's dwelling house was almost adjacent to the suit shop room, therefore, plaintiff must have witnessed when the defendant No. 1 was making alterations. But at that time he did not raise any objection. He has also pointed out the discrepancy between specific case of the plaintiff and the evidence of P.W.2 who came to support the plaintiff's case on this point. He also noted a relevant circumstances that plaintiff admitted in his evidence that after the defendant made the aforesaid alterations in the suit premises he did not send any notice to him protesting against such alterations. That apart, the learned Judge also observed that in the ejectment notice Ext.1, the plaintiff did not disclose that the defendant had made alterations in the suit premises without his consent. He made it clear in his observation that the grounds of ejectment need not be stated in the notice. But where several grounds were mentioned in the notice, but the plaint included an additional ground, the omission of that ground in the notice was a relevant fact for consideration on the question of truth or reasonableness of the plaintiff's case on that ground. After making the aforesaid findings, the learned Judge dismissed the appeal and affirmed the judgment of dismissal passed by the learned Munsif.;